Friday, 30 September 2011

NPPF - The National Trust wish list

I wrote recently that my colleague David Brock and I tend to blog on different subjects, but it seems that we have both independently hit on the same topic, probably because we both got emails direct from the National Trust yesterday (as authors of our respective blogs) telling us about their list of 10 planning ‘asks’ to the government.

David was quicker off the mark than me and got his response to this document out this morning, but even though our views are remarkably similar, I still think it is worth publishing my own response here. If you would like to compare this with David’s version, just click on the link on the sidebar.

Taking each of the NT’s points in turn, they are asking for:

1. Confirmation that the planning system should not be used as a blunt tool to ‘proactively drive development’.

They say that the guiding principle of planning has been to act in the public interest, balancing the needs of people and the environment with those of the economy. The NPPF, they say, should be rewritten throughout to make it a balanced document. Frankly, I do not accept this ‘take’ on the NPPF. As I have pointed out elsewhere, it is the omission of some of the detail which is to be found in current ministerial planning guidance which has largely been the source of the anxieties which have been expressed. In practice I think these concerns are unjustified; but in any event the government (any government) is fully entitled to tailor its ministerial planning policy to reflect its strategic aims. The Thatcher government did this in the early 1980s, and there is no reason why the present government should not do the same. The NT is being somewhat naïve if they think that government planning policy should be neutral or should be tilted towards preserving the status quo.

2. Clarification of how planning should promote genuinely, robustly defined, sustainable development.

This is another forlorn plea for a statutory definition of ‘sustainable development’. I fear the NT is likely to be disappointed. The term ‘sustainable development’ is already well understood, and is derived (as David has pointed out) from the Brundtland report and was adopted by the government some years ago. I confess to being somewhat sceptical about the practical application of the concept, but that is another matter.

3. Clause 130 of the Localism Bill, (Applications for planning permission: local finance considerations) should be removed. Financial payments should not be a material consideration in planning decisions.

Clause 130 is admittedly controversial, and I do have some misgivings about it. It is unlikely, however, that the government is going to be persuaded to retreat on this clause. So far as planning law principles are concerned, it is well settled law that financial considerations are capable of being a material consideration and so there is no legal objection to such considerations being taken into account in determining planning applications.

4. The NPPF should see no diminution of protection for designated countryside and heritage; and planning should continue to protect the wider countryside ‘for its own sake’.

I do not read the NPPF as leading to any diminution of protection for designated countryside and heritage. There are already policies in place (which will continue) which seek to protect the best and most versatile agricultural land. There are also strong landscape designations, such as National Parks and AONBs. The NPPF will not change this.

5 The NPPF should adopt an explicit ‘brownfield first’ approach.

This policy (which was pursued by the last government) has led directly to the chronic housing shortage the country now faces. There are many ‘brownfield’ sites which are seriously contaminated and which cannot be viably developed, or which are located in places where there is no market for housing. Like it or not, we have no choice but to build houses on green field sites, and lots of them.

6 The NPPF should provide a five year supply of land for housing, but the requirement to identify an additional 20 per cent of land should be dropped.

This is an essential element of the government’s new policy for growth, and is very much in line with the policy adopted over 30 years ago in Circular 9/80. There is an urgent need for a substantial increase in house building. The government is entirely right in seeking to ensure that the planning system delivers it.

7 The default ‘YES’, and requirement to grant permission where a local plan is out-of-date, indeterminate or silent, is irresponsible and must be removed.

This is nothing new. It has been a feature of government policy for many years. It is simply a timely reminder that where there is no up-to-date development plan in place, development should not be hindered or prevented as a result of that. Where, however, a new development plan is reasonably close to adoption, development in advance of it might well be seen as premature, and the Cala Homes appeal decision this week is a striking example of this. The NT’s anxiety is therefore misplaced.

8 Localism should be real: communities should be given genuine power to shape their area for the better.

There is already substantial community involvement in the plan-making process, and the Localism Bill provides a mechanism for even closer participation in plan-making at the local level. There is also considerable community involvement in development control issues at the local level, and that will continue. It is difficult to understand what the NT is asking for which is not already there either now or in the Localism Bill itself.

9 It is fundamentally wrong that neighbourhood plans should be led and funded by business. It should be a core principle of the reforms that any plans, whether at neighbourhood or local authority level, should be genuinely community led.

There seems to me to be absolutely no reason to exclude the business community from the promotion and formulation of neighbourhood plans. Local businesses may well have much to contribute to the process. The idea that planning is for residents only and not for local businesses is one which I fundamentally reject. Commercial enterprises are an essential part of the community and it is right that they should be able to shape neighbourhood planning like any other members of the community.

10 There should be a limited third party right of appeal, in circumstances where consent is granted for development that is inconsistent with the local plan. This should be guaranteed by the Localism Bill.

The Conservatives originally included a similar proposal in their pre-election “Open Source Planning” ‘green paper’, but when the practical consequences were spelt out to them, they very sensibly backed away from the idea. It might give me a useful source of additional work as a planning lawyer but, looking at it objectively, such a procedure could be extremely damaging to development and economic growth. Section 38(6) of the 2004 Act provides that planning applications are to be determined in accordance with the development plan “unless material considerations indicate otherwise”. There is bound to be a significant number of cases where planning permission is legitimately granted for that reason. Is it seriously suggested that every such planning permission is to be open to challenge and the material considerations which led to its being granted pored over and examined in an appeal? The government would be very ill-advised to accede to this suggestion, and in view of their understandable anxiety to promote economic growth and development it is very unlikely that they would be persuaded to make yet another U-turn on this issue.

I am bound to say that the document which they have issued does nothing to enhance the credibility of the National Trust. It shows a fundamental lack of understanding of the nature and purpose of the planning system, and a degree of political naïvety which is surprising for such a long-established organisation. One can only assume that it amounts to opportunistic ‘grandstanding’ in an effort to raise the public profile of the Trust. I know that I am not alone in expressing concern that the Trust should act in this way.


Thursday, 29 September 2011

Cala Homes lose in Winchester

The Secretary of State’s decision has been issued on Cala Homes’ proposal two build 2,000 dwellings plus various community facilities at Barton Farm, near Winchester. This decision involved rejecting the Inspector’s recommendation that planning permission should be granted.

I have not seen the decision letter itself, but Cala Homes seem to have won the argument over the principle of developing the site and other issues relating to the site itself, and I understand that the decision accepts that the housing target figure in the still extant South East Plan is a sound basis for assessing housing need. Furthermore, it seems that Winchester does not have a 5-year housing land supply. Various other material considerations also appeared to favour the grant of planning permission.

However, it seems that the developer’s proposals have been rejected primarily on grounds of prematurity in relation to the timing of Winchester’s emerging core strategy. This was a familiar reason for rejecting proposals in the past, although it does not appear to be in accordance with the draft NPPF, which now calls for permission to be granted in the absence of an up-to-date development plan. The weight which can be given to the draft NPPF is admittedly limited while the current consultation on the document is continuing, but the Secretary of State does not appear to have followed his own emerging policy.

Rather surprisingly, having regard to the apparent change of direction foreshadowed by the draft NPPF, it seems that the Secretary of State has placed greater emphasis in this decision on the concept of ‘localism’. It would appear that some weight has been given to the fact that the site is identified as a reserve site in the LPA’s Local Plan Review (2006) which was to be released only if there is a "compelling justification". Loss of farmland and landscape impact were further factors which swung the decision against development.

When one considers all the points which would seem to have favoured a grant of planning permission in this case, it is a little difficult to understand how a refusal can be justified. Cala Homes’ lawyers will no doubt be poring over the decision letter in great detail but, even on a very superficial outsider’s view, this decision would appear to be potentially challengeable. The only uncertainty is whether a successful legal challenge would ultimately lead to a different outcome. By the time the matter is re-determined, the South East Plan will probably have been scrapped, and Winchester’s new core strategy will be in place. But Cala Homes have not shown any reluctance to pursue legal proceedings against the Secretary of State over the past couple of years, so maybe they will take a punt at it in the hope that they might still win through in the end.


Dale Farm again

Rightly or wrongly, my interest in the Dale Farm saga is strictly limited, and I am commenting on it again only because I wrote a short piece last week at a time when the scope and purpose of the latest court action was far from clear.

The history of this site is a long one, and I have no intention of trying to summarise it here. Suffice it to say that Basildon District Council has been seeking to remove the unauthorised development on the site for a very long time, but (in common with similar cases elsewhere) the people against whom the enforcement action was taken have fought a long and bitter legal battle, which has turned into the legal equivalent of trench warfare.

The enforcement notices were upheld in previous appeals, and legal challenges to those decisions were ultimately dismissed. However, so far as I have been able to understand it, the latest proceedings are seeking judicial review of the Council’s decision to go ahead with the clearance of the site at this particular point in time. I have not seen the pleadings, but I gather that the basis for the challenge is that the Council has failed to take into account various material considerations, such as the consequences for children living on the site and their education, as well as the effect on those residents who are elderly or ill. Thus the argument is essentially the same as I had guessed when writing my initial note, and alleges that eviction now would be in breach of the travellers' human rights (under Article 8 of the ECHR).

An earlier challenge on this same ground was dismissed by the Court of Appeal in 2009, and in any event human rights are never absolute; they have to be balanced against the wider public interest in the enforcement of the law. The latter point might well defeat the current claim and, in order to get round the previous dismissal of the human rights claim, the claimants would have to show that there has been a change of circumstances which leads to a different conclusion now. This might be arguable, but I remain sceptical.

The denizens of Dale Farm seem to be fighting on every conceivable front. They even tried to get the structures they have erected on the site listed by English Heritage! Will they possibly try to judicially review EH’s refusal to list them? Ant such application might well be seen as frivolous or vexatious. Another ongoing action is an attempt to judicially review the Council’s decision to remove these structures themselves. The argument seems to be that these structures are not covered by the actual enforcement notices and their removal is unnecessary in order to achieve the objective of the enforcement action. I would have thought that the decision in Somak Travel would be sufficient to defeat this claim.

The outcome of the next stage in these various proceedings may be known within the next week or so, but that clearly won’t be the end of the story. To use an old journalistic cliché, this one will run and run.


Friday, 23 September 2011

The planning debate

I am becoming increasingly bemused by the storm of protest over the government’s proposed National Planning Policy Framework. A number of other planning professionals with whom I work regularly have also expressed puzzlement over the brouhaha.

My mother used to tell me as a small boy – “Don’t cry until you’re hurt”, but bodies such as the National Trust, the CPRE and RSPB, not to mention the Daily Torygraph (who seem to be stirring up the controversy for their own purposes, no doubt in an effort to boost circulation) don’t seem to have heard of this old saying. They are screaming the place down, and seem to be under the impression, whether genuine or simulated, that the NPPF will lead to the whole of England’s green and pleasant land being covered in bricks and concrete, not to mention the entire destruction of the country’s wildlife and habitats and the loss of the country’s historic buildings, ancient towns and archaeological sites. This is an extreme and frankly absurd reading of the NPPF, and those who are so loudly banging the drum about these alleged evils are in considerable danger of destroying their own credibility, with the result that they may be listened to with less respect in the future on an occasion when they do actually have a valid point to make.

On the other hand, the government has to a large extent brought this trouble on themselves. Their attempt to abridge ministerial policy guidance so drastically was bound to be fraught with difficulty, and I have previously pointed out in this blog that the absence of much useful guidance contained in the existing policy documents could be a source of considerable doubt and uncertainty for users of the planning system in the future. It was an entirely unnecessary exercise, designed solely to demonstrate the political machismo of Fatty Arbuckle (or ‘Uncle Eric’, as we have learned to call him in this blog).

Even without the pro-development agenda which the government has been pursuing since late March, the removal of numerous detailed points in the existing guidance was bound to cause anxiety in some quarters that the silence of the NPPF on points of detail which had been clearly spelt out in previous ministerial policy guidance would in practice be interpreted as a deliberate policy change. This fear has been greatly exacerbated by the additional spin in favour of ‘sustainable development’ which has been stirred into the cauldron.

It may be too late for the government to extricate themselves from the mess in which they now find themselves, but it is abundantly clear that the pro-development agenda which the government wishes to pursue could have been introduced without the need to scrap existing ministerial policy guidance and to attempt to squeeze it into a single abbreviated document. Some revision of individual PPGs/PPSs would have been required in order to change the emphasis of certain ministerial policies, but such an exercise would never have caused such a furore as has been stirred up by the draft NPPF.

Even a forthright statement of principle, such as those set out in various circulars in the early 1980s (for example - 9/80, 22/80, 15/84 and 14/85), is unlikely to have courted such controversy. That earlier drive for growth, led by Michael Heseltine as Secretary of State under the leadership of Margaret Thatcher, did not engender any such outcry as the draft NPPF has caused. Admittedly, its results did in time lead to increasing unease in Middle England; and the growing weight of protest against ‘greenfield’ development in Tory MPs’ postbags did eventually persuade the Iron Lady to reverse the policy in 1987, and to develop instead the concept of ‘plan-led development’, which was enshrined in 1991 in what then became Section 54A of the 1990 Act. But by that time, property development had played its part in promoting economic growth, as the Thatcher government had intended.

So what can the government do now to get itself off this very uncomfortable hook of its own making? One obvious ploy would be to make ‘concessions’ to critics of the NPPF, by adding back into the text passages from previous policy guidance which were omitted from the original draft, but which would not significantly alter the general thrust of ministerial policy. As I mentioned earlier, there are quite a few points of detail whose omission does not betoken any significant change of policy, but whose absence has nevertheless caused anxiety in various quarters. Such text could readily be restored without diluting the government’s overriding aim of promoting development.

An even more significant concession could be made by removing from the NPPF those words and phrases which appear to be calculated to promote an unduly relaxed approach to development management, and replacing them in an entirely separate document, perhaps a circular similar to those issued in the early ’80s which would spell out the government’s determination to promote development as an instrument of economic policy.

The other steps which the government could take, as I mentioned in my last post [“Whose fault is it?”], would be to amend subordinate legislation to make it much easier and simpler to apply for planning permission, followed as soon as practicable by amendment of the primary legislation to introduce a much simplified development plan system. Repeal of Section 38(6) of the 2004 Act would be another very helpful step in the same direction. Section 70(2) of the 1990 Act is a perfectly adequate basis on which to base the development control process.

The government has already embarked on consultation in connection with the first part of this exercise, and so we can genuinely hope that there will shortly be some simplification of the development control system. Primary legislation to amend the development plan regime would have to await the next available slot in the parliamentary timetable, bearing in mind that De-CLoG have had their ‘turn’ with the Localism Bill and so may now have to go to the back of the queue behind other government departments anxious to introduce their own bills.

How this all pans out will gradually become a little clearer towards the end of the year, when the Localism Bill reaches the statute book, and when the consultation exercise on the simplification of the development control process is completed and is (we hope) turned into revised subordinate legislation. The hysterical campaign against the NPPF will eventually abate, and a more measured discussion of planning policy may then be possible. In the meantime, planners who want to avoid raised blood pressure should refrain from reading the Daily Torygraph, and turn a deaf ear to all the yelling coming from the National Trust, the CPRE and the other usual suspects.


Dale Farm

I have studiously avoided commenting on the Dale Farm saga up to now, but I was finally cornered by BBC Radio 5 Live to give a brief interview on air this morning. I should make it clear that I have no involvement with any of the parties to this dispute, and the sole reason for my being contacted by the BBC is that I am one of the people on the Law Society’s list of solicitors who are prepared to talk to the media on planning law issues.

I was asked first about the cost to the Council of pursuing this action, now amounting about £18 million. Was this a sensible use of public money? The obvious answer to this is that the Council really had no choice in the matter. Having decided that the serious breach of planning control which had occurred at Dale Farm could not be allowed to continue, the Council quite understandably served enforcement notices on the occupiers of the illegal encampment on the site. The eye-watering costs were incurred by the Council in responding to the resulting appeals and the subsequent legal proceedings pursued by the people against whom the Council is taking action. A local planning authority should not be deterred from enforcement action, if it has decided that it is in the public interest, just because it might prove to be expensive. If Councils were to back away from enforcement action for this reason, the planning system would break down and chaos would ensue.

I was also asked about the precedent effect of the Dale Farm case. In practice, in matters of this sort involving gipsy or traveller sites, each case is so different on its particular facts that no one case is likely to set a precise precedent. On the other hand, a failure on the part of a local authority to take action in such a case might well send out a signal which would encourage similar breaches of planning control in the future. In that sense, failure to act would set a very undesirable precedent.

I just had time on air to mention that one has some sympathy with gipsies and travellers, who have great difficulty in finding sites to station their caravans, due to the failure of planning authorities throughout the country to designate enough legal sites where they could go. This is a long-standing problem, which has not been helped by successive changes of mind on the issue on the part of central government. It is this factor which does not make it an automatic decision to take enforcement action in any particular case. A Council must balance the human rights of the site occupants with the general public interest, both in planning and environmental terms and in terms of maintaining the integrity of the development control system.

The issue of human rights is much misunderstood. Human rights are important and do have to be taken into account, and I was pleased to hear the Deputy Prime Minster say in clear terms this week that the Human Rights Act is here to stay, no matter what some Tory backbenchers might prefer. But human rights are not an overriding factor in these cases. They have to be balanced against the wider public interest, and what planning inspectors and the courts have to decide is whether the action taken by a public body or authority which in principle breaches an individual’s human rights is proportionate in the circumstances. That is what today’s High Court hearing in the Dale Farm case is about, specifically in relation to the timing of the Council’s proposed physical eviction of the residents at Dale Farm in relation to various issues such as ill-health, the vulnerability of particular individuals and similar issues. Wednesday’s temporary injunction was simply necessary in order to preserve the current position until the claimants have had the opportunity to be heard by the court.

I have no intention of predicting what the outcome of today’s application will be, but the judge will no doubt weigh the issues very carefully, and the case could go either way depending on whether or not the judge feels that the immediate physical eviction of the claimants is proportionate in the circumstances. I strongly suspect that success on the part of the claimants in today’s hearing would not amount to outright victory, but would simply result in a stay while the particular needs of the claimants are addressed. The judge may, however, feel that the Council’s current intention to evict the claimants is proportionate in the circumstances and should be allowed to go ahead. We should know later today, or by early next week at the latest.


Wednesday, 21 September 2011

Whose fault is it?

Much heat is being generated over planning reform and the government’s determination to promote economic growth by easing the planning process.

There can be no doubt that the planning system is slow and bureaucratic, both in its plan-making procedures and in the development control process (or development management, as some people now prefer to call it). So whose fault is this?

The government blames the planners, and it is true that some planning officers can be rather bureaucratic and negative in their attitudes and in the way they handle planning applications. A recent comment on the RTPI Linked-in discussion forum drew attention to a demand for a Design and Access Statement to accompany a retrospective application for approval of a chimney-flue! It is this sort of nonsense that gives planners a bad name.

But the underlying problem is the legislation, particularly the detailed subordinate legislation which governs development control procedure. Ultimately, it is the politicians who are to blame for this. It is they (or civil servants acting on their behalf) who have dreamed up the labyrinthine complexity of the current system and the convoluted procedures which local planning authorities are now required to go through in order to produce a Development Plan and which developers are required to negotiate in order to obtain a planning permission.

Governments of different political complexions have purported to ‘reform’ the planning system on a number of occasions over the past 20 years or so, but each attempt at alleged ‘reform’ has only served to further complicate an already complex system. Let there be no doubt about it; the blame for this lies fairly and squarely at the feet of the politicians. They might claim that they were badly advised by their civil servants, but ministers (both past and present) must accept ministerial responsibility for the resulting mess, and back-bench MPs must also accept their share of responsibility for voting this legislation through.

Politicians might plead in mitigation that they were responding to pressure from the electorate to close alleged loop-holes or to dot ‘I’s and cross ‘T’s, but the result has been entirely counter-productive and has led to a planning system which is weighed down with the bureaucratic burden which has been placed on it. The Localism Bill, quite frankly, will do nothing to lighten the load, and in fact by introducing an extra layer of ‘neighbourhood planning’ it will add further complication to an already over-complex planning system.

Under the 1947 Act, the Development Plan consisted simply of a County Development Plan for each County (or County Borough), supplemented by Town Maps in larger towns and cities. There were legitimate criticisms of what was often referred to as ‘zoning’, and so we moved on in the 1970s and 1980s to a two-tier Development Plan system, comprising a County Structure Plan (which was intended to be purely strategic in its approach) and Local Plans produced by District Councils, which filled in the details. It seems to have been quickly forgotten that Local Plans were originally intended simply to replace Town Maps. Thus ministerial advice indicated that LPAs need not produce Local Plans for their whole areas, but should do so only where these were considered essential. Later, LPAs were urged to produce Local Plans for their whole area, and this was then enforced by legislation.

What really screwed up the development plan system was the introduction in 1991 of Section 54A of the 1990 Act (now replaced by Section 38(6) of the 2004 Act) which required that where a determination under the Planning Acts had to take account of the Development Plan, it was to be made “in accordance with the Development Plan, unless material considerations indicate otherwise”. This had the immediate effect of making Local Plan development allocations essential to the future development of land, particularly for housing, and so local plan inquiries became increasingly lengthy as developers and their opponents fought over the development proposals and policies in the Local Plan. This was in stark contrast to the previous ministerial policy set out in Circular 14/85, which had boldly stated that “the Development Plan is one, but only one, of the material considerations” which had to be taken into account (in accordance with what is now Section 70 of the 1990 Act). Another complicating factor was the tendency of LPAs to throw every possible development control policy into the Local Plan, thus making them as thick as telephone directories, in contrast to the comparatively slim size of the former County Development Plans. Such over-prescriptive policies are entirely unnecessary.

A third element was then introduced in the development plan system in the form of regional plans. These started life as ‘Regional Planning Guidance’, a species of ministerial policy guidance akin to PPGs, but they were then transmogrified into statutory “Regional Spatial Strategies” (later simply called “Regional Strategies”), which the present government now wants to abolish. Whatever form they took, these regional policies did have the advantage of clearly identifying the level of housing need which would have to be met by the development plan. These figures were not just a central government diktat, as the present government seeks to pretend, but were based on sound and thorough research. With or without a regional strategy of some sort, that need still exists, and the statistics which demonstrate that need are there for all to see.

The 2004 and 2008 Acts greatly complicated the development plan system by replacing Local Plans with a much more complicated ‘Local Development Framework’ (LDF). Instead of a single Local Plan, comprising a written statement and a proposals map, LPAs are required to produce a Core Strategy (involving a convoluted process of consultation, ‘community involvement’ and the certification by a Planning Inspector of the ‘soundness’ of the Core Strategy after public scrutiny, involving both written submissions and hearings) followed by a suite of ‘Development Plan Documents’ (DPDs). The LDF will not be complete until all those DPDs are in place, and progress so far has been painfully slow. Only 30% of LPAs in England have so far got an adopted Core Strategy, but even this is no more than the first stage in producing a comprehensive LDF. Much of the development control policy formerly set out in Local Plans will be found in the DPDs, on which those authorities which have a Core Strategy in place have still made only limited progress in many cases. Thus there are very few, if any, LPAs which currently have a complete LDF in place, and it is likely to be some years before anything like complete plan coverage is achieved.

Local authorities are not to blame for this wholly unsatisfactory state of affairs. They have limited resources (which are now being squeezed more than ever) and yet have been required to start the plan-making process again from scratch. Responsibility for this state of affairs lies, once again, in the hands of ministers and their parliamentary supporters, who have imposed this impracticable system on local government. It is the politicians, not the planners, who are to blame for this.

In addition to the unnecessary complexities of the development plan system, we are also afflicted by a cumbersome and time-consuming development control system. The last government must take a large measure of the responsibility for this added complication. Applications for planning permission, especially for outline permission, used to be quite straightforward. A relatively short application form was accompanied by a site plan and (in the case of an application for full permission) drawings of the development for which approval was sought. The LPA could ask for further information, but in the meantime the application was placed on the planning register and processing of the application would proceed.

Now we have onerous requirements, which call for a whole raft of information (much of it unnecessary) before the application can even be ‘registered’. Details of what is proposed are required even for an outline application, even where the landowner who is seeking the outline permission may have only a very vague idea of the precise form of development which a future developer might wish to build. There is a wholly unnecessary requirement for a ‘Design and Access Statement’. Such a document might be useful for really large-scale developments, but these would in any event usually have their own development brief and, on very large sites, a Master Plan, so the D&A statement could probably be scrapped altogether.

We now also have a standard application form (1APP) for use throughout the country. In principle, this might seem to be a good idea but, as I predicted when the form was being designed, the form ended up by being far too complicated. The temptation to throw in all sorts of requirements was too great for the bureaucrats to resist. The problem was compounded by the publication of national and local checklists of information which the planners require before the application can even be registered. Much of this information is irrelevant to particular applications or is simply unnecessary, but lay readers would not believe the tussles planning professionals have with planning officers over the provision of this information. This is one area where planning officers do themselves no favours, and it is probably the greatest single factor in creating the perception which the government is keen to encourage that it is the planners who are delaying or preventing development. Scrapping these information requirements, including the need for a D&A statement, would be the greatest single improvement which could be made to the development control system, and would do more than anything else to remove the perception of obstruction and delay on the part of planning officers. LPAs would still be able to call for extra information when needed, but this should only arise once the planning application is in the system and only if the need for such further information becomes clear during the subsequent processing of the application. There should be a right of appeal (as there always used to be) against an LPA’s insistence on further information being provided.

Simplification and streamlining of the development control system can be achieved relatively easily by revised subordinate legislation, and the government is currently consulting on this. One can only hope that the government’s determination to achieve economic growth through development will be carried through to these procedural mechanisms as an aid to promoting development.

Simplification of the development plan system would require further primary legislation, and it is a great pity that in their rush to introduce the very unsatisfactory Localism Bill, the government has lost the opportunity, at least for the time being, of introducing a more fundamental reform of the development plan system so as to produce a far simpler form of development plan which could be prepared and adopted much more swiftly than the complicated Local Development Frameworks.

So perhaps this short piece may help the RTPI in their ‘myth-busting’ campaign, which seeks to give the lie to the government’s assertion that it is solely the planners who are preventing or delaying development. The solution lies solely in the government’s hands; it is they who must revise primary and subordinate legislation to streamline both the plan-making process and development control procedures.


Monday, 19 September 2011


This blog is intended as a purely personal commentary on planning law issues, rather than a corporate or personal marketing tool, but I am very pleased to share with you the news that one of the country’s leading planning lawyers, David Brock, has today joined KEYSTONE LAW. He was until very recently head of Mills & Reeve’s planning law team and before that was a partner at Herbert Smith and he has also chaired the Law Society’s Planning & Environmental Law Committee for several years. Among many other professional activities, David has led the Law Society’s representations to the government on the Localism Bill, which has been successful in securing some important changes to Part 5 of the Bill, dealing with town planning. I know that David’s views on the enforcement provisions in the Bill coincide with those which I have expressed myself in this blog.

David’s arrival greatly strengthens the planning law team at KEYSTONE LAW, and we expect at least one other addition to the team and possibly two in the near future, which will bring our total strength in the planning law team to at least four and perhaps five, all of whom are experienced and long-serving planning lawyers.

David Brock has recently started his own blog, having been joint author of his previous firm’s planning law blog. I have provided a link to this blog on the side bar. You will find that David and I generally blog on different but equally interesting topics, and I think it is fair to say that David tends to concentrate on planning policy and what might be described as ‘corporate’ planning law (which reflects his experience in acting for major developers and landowners) whereas I generally concentrate more on the sort of planning law which is of concern to private clients and ‘SMEs’ [small and medium-size enterprises].

I was very interested to see a recent post in David’s blog in which he identifies the origin of “the presumption in favour of development” - in a government circular of 1923. I was aware that the presumption in favour of development went back to the early 1920s, but I had not previously been able to track down the precise document which set it out. It was Circular 368, published on 29th January 1923. See David’s blog for further details.


Thursday, 8 September 2011

Planning for free schools

There seems to be some dismay in the independent education sector, particularly among those who wish to promote ‘free schools’, that the planning system could still represent a significant stumbling block in the realisation of their aspirations.

In retrospect it was unwise of the Education Secretary, Gussie Fink-Nottle (who currently operates under the pseudonym of ‘Michael Gove’) to promise last year to “tear up planning laws” to allow his new ‘free’ schools to be built. From recent correspondence I have received, it is clear that some of those who had expected to benefit from the planning relaxation which had been foreshadowed in ministerial statements have still not appreciated the extent of the government’s retreat from its earlier gung-ho approach to these matters.

It seems, in fact, that there are quite a few people who have been seriously misled by the latest ministerial pronouncement into believing that the government has now cleared the way for ‘free schools’ to be built (or to be converted from existing buildings) with the minimum of planning formalities, whereas the government has in fact entirely abandoned its original intention of amending either the Use Classes Order (which was never really a practical idea) or the General Permitted Development Order so as to enable such schools to be set up without the need to apply for express planning permission. ‘Planning’ magazine correctly characterised the latest announcement as a “free schools planning climbdown”, and the Guardian accurately reported the true nature of the government’s retreat in face of an overwhelmingly hostile response to the idea of allowing schools to be established in all sorts of premises without the need to obtain express planning permission for this change of use.

The attempts of ministers to dress up this abject failure of will as in some way demonstrating their determination to forge ahead with free schools is frankly pathetic. It is the worst kind of ‘spin’, and is yet another example of government by press release, to which this government seems to have been addicted ever since it came to power. Eric Pickles has resorted to his favourite mantra of pretending that there will be a ‘presumption in favour’ of the grant of planning permission for such projects, whereas such proposals will in practice have to comply with all the usual planning policies and other material considerations which are always taken into account in the determination of any planning application.

Contrary to what Uncle Eric was trying to imply, appeals against the refusal of planning permission will not simply be waved through. The Planning Inspectorate will no doubt apply the same objective approach to the proposals as they would to any other appeal. If the LPA, who may well be supported by local residents opposed to the scheme, shows that there are sound planning reasons for refusing permission, then such an appeal can be expected to be dismissed. Only if or when local authorities have refused planning permission on other than planning grounds will there be a strong chance of an appeal being allowed, and possibly also an award of costs being made against the LPA.

This should not deter those who wish to promote new schools from applying for planning permission; they must simply realise that they will have to make out a good case in planning terms, taking account of the design of any new buildings in the context of their surroundings, and the suitability of the proposed use in relation to neighbouring land uses, especially in a residential area. The possibility of noise, disturbance and other effects detrimental to residential amenity are bound to be important issues.

I have no strong views on the desirability or otherwise of establishing ‘free schools’ but, from a planning point of view, I am sure the government was right to draw back from the controversial stance which they had originally adopted, even if it makes Gussie Fink-Nottle look a bit of a chump (which, of course, we all knew he was anyway).


Questioning the validity of Enforcement Notices (2)

I wrote a piece on this topic on 20 April. Since then, we have had the decision of the High Court in Britannia Assets (UK) Ltd v. SSCLG [2011] EWHC 1908 (Admin), in which judgment was given on 22 July.

In April, ‘HW’ drew to my attention a recent enforcement appeal in Scotland in which the issue of expediency was raised with the Reporter [Inspector] in a challenge to the vires of the notice. HW suggested that, as it is a statutory requirement to give reasons for issuing the notice, it seemed to him that a challenge might 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. HW referred to previous appeals where such issues were raised, which seemed to indicate that the Secretary of State [now Scottish Ministers] had no alternative but to consider them since they went 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 but, as the appeal was allowed on another ground, the issue obviously wasn't taken any further. In light of the decision of the High Court in Britannia Assets, this point would no longer appear to be arguable. Although it is an English decision, I am sure it will be of strong persuasive authority in the Scottish courts.

I do not propose to discuss the Britannia Assets judgment itself. It is abundantly clear from that judgment that a challenge to an enforcement notice based on the alleged illegality of the decision to issue the notice or on some alleged procedural irregularity in its being issued can only be brought by way of an application for Judicial Review under CPR Part 54.

Following Britannia Assets, it would therefore seem that where a defective enforcement notice is served, the legal remedy or remedies available will depend on the precise nature of the defect in the notice.

In the most extreme case, the notice might prove to be so badly drafted that it is a nullity. Such cases are very rare, and Inspectors and judges will avoid reaching that conclusion if at all possible. However, if the notice omits a vital element which is a prescribed part of the notice, it might in those circumstances be a nullity, and the effect of this is that there is no notice at all. In such a case the Secretary of State and his Inspectors have no jurisdiction to entertain an appeal. This point will usually be put to the Planning Inspectorate in writing at the outset of an appeal, and if they agree they will issue a letter declining jurisdiction. If the position is open to dispute, the point may be put to an Inspector in the course of an appeal, and if the Inspector then accepts that the notice is a nullity, he or she will confirm this and will close the matter without adjudicating on the appeal.

There are several legal consequences in a case where an enforcement notice is a nullity. First, a finding by the Secretary of State or by an Inspector that an enforcement notice is or is not a nullity cannot be challenged by way of an application to the High Court under section 289; it can only be challenged by way of an application for Judicial Review under CPR Part 54. Secondly, the fact that the notice is a nullity is one of the rare situations in which the defective notice can be raised as a defence to a prosecution for failure to comply with the notice (as per the House of Lords decision in R v. Wicks), and it would theoretically be possible, though a very high risk strategy, to ignore the notice altogether and simply to run a defence to prosecution which relies on the fact that the enforcement notice is a nullity. You would, of course, have an insoluble problem if the Court did not agree that the notice was indeed a nullity! The third consequence of an enforcement notice being a nullity, in my view, is that the ‘second bite’ provision under s.171B(4)(b) cannot operate if a further attempt to issue and serve an enforcement notice would by then be out of time. I am not aware of any judicial authority to support this proposition, but I argued the point in this blog a few years ago, if anyone would like to look it up. [It’s in the 2008-9 archive.]

The next possibility is that the enforcement notice is valid on the face of it, but is vitiated by bad faith, or failure to consider expediency (under section 172), or is ultra vires the authority or the officer who purported to issue it or not in accordance with scheme of delegation (i.e. it is vitiated by procedural impropriety). What is now clear from the judgment in Britannia Assets is that the only way in which an enforcement notice can be challenged on these grounds is by way of a timely application for Judicial Review under CPR Part 54. It is not a matter for the Inspector in a section 174 appeal, who has no jurisdiction to adjudicate on this type of issue. Nor can it be raised in a subsequent appeal to the High Court under section 289, as such proceedings can only be directed to the Inspector’s appeal decision and not to matters which were outwith his or her jurisdiction. It would in any event be too late by that time to challenge the decision of the LPA to issue the notice or to challenge the manner in which the LPA acted in doing so; the time limit for bringing an application for judicial review would be long past and so it would not be possible to turn a section 289 appeal into and an application for judicial review under CPR Part 54. On the basis of R v. Wicks, a defence to a prosecution would also appear to be ruled out in these circumstances.

An enforcement notice can still be so defective that, whilst it is not a nullity, it is incapable of being corrected by an Inspector on appeal (under the powers contained in section 176) without injustice to one of the parties. In a case of this kind, the only practicable means of challenging the notice is in the course of an appeal under section 174. An Inspector’s decision that the notice can or cannot be corrected without injustice to either party is itself capable of challenge as part of an appeal to the High Court under section 289, but the Courts have shown considerable reluctance to rule out corrections under a statutory power which was intended to be, and is in practice, widely drawn.

Thus, in most cases in which an enforcement notice is arguably defective, the practical remedy usually turns out to be its correction by the Inspector under section 176 in the course of an appeal under section 174. Judicial review is very unlikely to be an option in such cases, and only if the Inspector can be shown to have erred in law will his or her appeal decision be capable of being challenged in the High Court under section 289. R v. Wicks definitely rules out a defence to prosecution which relies on an alleged injustice to the defendant caused by an Inspector’s ‘wrongful’ correction of the notice under section 176.


Localism Bill - House of Lords report stage

The House of Lords began the report stage of the Localism Bill on Monday 5 September. The committee stage had been truncated, so the first part of the debate has in practice been a continuation of the discussion on those parts of the Bill which were not dealt with in committee. Thus their Lordships have been discussing the housing provisions in the Bill during the course of this week.

It is not clear (to this writer at least) how the report stage of the Bill will then continue, and I shall not have time to follow it over the next week or two. I shall have to see later this month what has emerged. There are certainly some important government amendments in the pipeline, and so we have not yet seen the final shape of the Bill.