Monday, 24 September 2012
Pickles says “Sue the Council” !
I missed Pickles’ performance on BBC’s Sunday Politics Show yesterday, but I nearly fell off my chair laughing when I read that he had advised disappointed would-be conservatory builders to sue their local councils if they prevent them from building their longed-for extensions by making an Article 4 Direction.
Uncle Eric doesn’t seem to be aware that it is a very well established principle of public policy, which is rigorously enforced by the courts, that local planning authorities cannot be sued for the manner in which they use their development management powers. As a planning lawyer, I quite frequently hear people who have been thoroughly messed about by a local planning authority declare that they are “going to sue the council for this”. I just have to explain patiently to them that they can’t.
Actually, I think I know what Pickles had in mind. If an Article 4 Direction is made which removes certain permitted development rights from a property, a person who then makes a planning application for a development which would have been permitted development in the absence of the Article 4 direction has a right to compensation if that planning permission is refused. However, the right to claim compensation is hedged around with certain restrictions. First, compensation can only be claimed if the planning application is made within 12 months from the date when the Article 4 Direction takes effect. Secondly, the local planning authority can avoid having to pay compensation altogether if they give 12 months’ notice before the Article 4 Direction comes into force.
Another point to be borne in mind is that the amount of compensation that can be recovered may not be all that great. The measure of compensation is the capital value the property would have had if the planning permission had been granted, compared with the capital value of the property without the permission. In the case of the sort of extensions we are talking about, the difference might not amount to very much. The compensation does not include any element for the expenses incurred by the applicant in attempting to obtain planning permission or for any other consequential losses, and certainly nothing for wounded feelings, hurt pride and general annoyance.
Officers of Richmond LBC were recently told by their elected members to go through the planning laws with a fine tooth comb to find a way of avoiding enlarged extensions being built in their area. In fact they won’t have had to look very far. If local planning authorities really don’t like the idea of an amended General Permitted Development Order allowing significantly larger extensions over the next few years, then there is nothing to stop them making Article 4 Directions, whether Uncle Eric likes it or not. The risk of having to pay compensation to disappointed home owners deprived of their opportunity to build conservatories and other extensions is a factor which they may have to take into account. This may deter some authorities from making Article 4 Directions, but others may think it a risk worth taking.
© MARTIN H GOODALL