Wednesday, 28 November 2012

Changes for Listed Buildings and Conservation Areas

While attention has been focused on the passage of the Growth and Infrastructure Bill through the Commons, another bill, the Enterprise and Regulatory Powers Bill, has been passed by the Commons and has been quietly making its way through the Lords. This bill includes a number of changes to the Planning (Listed Buildings and Conservation Areas) Act 1990. These changes had been announced some time ago, but it is interesting that the government has not taken the opportunity to revive the proposals that were included in the last government’s abortive Heritage Protection Bill.

Some of the ideas in this new Bill sound a bit high-falutin’, and one wonders what use is likely to be made of them in practice. For example the bill introduces ‘heritage partnership agreements’ between LPAs and the owners of listed buildings. These agreements can also be entered into with listed building owners by DCMS and by English Heritage.

A heritage partnership agreement may grant listed building consent under section 8(1) of the Act in respect of specified works for the alteration or extension of the listed building subject to any conditions that may be specified in the agreement. A heritage partnership agreement may also specify or describe works that would or would not, in the view of the parties to the agreement, affect the character of the listed building as a building of special architectural or historic interest, make provision for the maintenance and preservation of the listed building, and provide for the carrying out of specified work.

It may also provide for public access to the listed building and the provision to the public of associated facilities, information or services, while restricting access to, or use of, the listed building, or prohibiting the doing of any specified thing in relation to the listed building. The agreement may also provide for the payment of grants (on specified terms) for, or towards, the costs of any works provided for under the agreement, or in consideration of any restriction, prohibition or obligation accepted by any other party to the agreement.

A heritage partnership agreement must be in writing, must make provision for the parties to review its terms at intervals specified in the agreement, must make provision for its termination and variation and may relate to more than one listed building, as well as containing incidental and consequential provisions.

DCMS may make detailed regulations regarding any consultation that must take place before heritage partnership agreements are made or varied, about the publicity that must be given to heritage partnership agreements before or after they are made or varied and specifying terms that must be included in heritage partnership agreements. The regulations may also enable the Secretary of State or any other person specified in the regulations to make an order terminating a heritage partnership agreement or any provision of such an agreement;

Listed building consent granted by a heritage partnership agreement (except so far as the agreement or regulations otherwise provide) will enure for the benefit of the building and of all persons for the time being interested in it, but a heritage partnership agreement cannot impose any obligation or liability, or confer any right, on a person who is not a party to the agreement.

It will not be possible to get any of the covenants in a heritage partnership agreement lifted under Section 84 of the Law of Property Act 1925 (in contrast to the power to get restrictive covenants discharged or modified under that section).

Another innovation is the introduction of Listed Building Consent Orders, which will be similar in nature to the General Permitted Development Order. An LBCO will grant listed building consent under section 8(1) in respect of works of any description for the alteration or extension of listed buildings in England. The consent may be granted subject to conditions specified in the order. An order may include a prior notification provision allowing an LPA to require details of works to be approved by them, and the order may grant consent subject to conditions relating to the making of an application to the authority for a determination as to whether such approval is required, and the outcome of such an application or the way it is dealt with.

A listed building consent order may enable the Secretary of State or the LPA to direct that consent granted by the order does not apply to a particular listed building, to listed buildings of a particular description, or to listed buildings in a particular area.

LPAs will also have power to make Local Listed Building Consent Orders (analogous to Local Development Orders). This power will be very similar in scope to Listed Building Consent Orders made by the Secretary of State. These powers will be subject to a degree of supervision by DCMS, enabling the Secretary of State to prevent the making of an LLBCO without his approval. The Secretary of State will also have power to revoke an LLBCO if of the opinion that it is expedient to do so.

There are provisions to cater for incomplete works to a listed building where a Listed Building Consent Order is revoked or amended. The order may include provisions permitting the completion of works if the listed building consent is withdrawn after the works are started but before they are completed. Compensation provisions are also included in the bill which are similar to those applying where the GPDO (or an LDO) is revoked so as to remove the deemed consent that was previously granted by the order.

A very welcome and long-awaited reform is the introduction of certificates of lawfulness for proposed works to a listed building. This will enable anyone who wishes to ascertain whether proposed works for the alteration or extension of a listed building in England would be lawful to make an application to the local planning authority specifying the building and describing the works. If on an application under this section the local planning authority are provided with information satisfying them that the works described in the application would be lawful at the time of the application, they must issue a certificate to that effect; and in any other case they must refuse the application. The lawfulness of any works for which a certificate is in force under this section is to be conclusively presumed unless there is a material change, before the works are begun, in any of the matters relevant to determining their lawfulness.

There will be a right of appeal against the refusal of a Lawful Works Certificate. Detailed procedure rules will be made for the conduct of appeals. In practice, these appeals will no doubt be very similar to appeals under section 195 of the principal Act.

In addition to these changes, there are provisions in Schedule 17 of the bill which amend section 171B of the principal Act so as to remove entirely the time limit for enforcement action against a breach of planning control in respect of the demolition of an unlisted building in a conservation area (in England only). However, in an enforcement notice appeal under section 174 against an enforcement notice that relates to any such demolition, an appeal may also be brought on the grounds that the demolition was urgently necessary in the interests of safety or health, it was not practicable to secure safety or health by works of repair or works for affording temporary support or shelter, and the relevant demolition was the minimum measure necessary.

A new section 196D will make it an offence to demolish an unlisted building in a conservation area without the required planning permission. Failing to comply with any condition or limitation in a planning permission for any such demolition will also be an offence. In the same way as in the case of a section 174 appeal, it will be a defence for a person accused of an offence under this section to prove that the relevant demolition was urgently necessary in the interests of safety or health, that it was not practicable to secure safety or health by works of repair or works for affording temporary support or shelter, that the relevant demolition was the minimum measure necessary, and that notice in writing of the demolition was given to the local planning authority as soon as reasonably practicable. (All four elements of the defence must be proved.)

A person guilty of an offence under this section will be liable on summary conviction, to imprisonment for a term not exceeding 12 months or an unlimited fine or both, and on conviction on indictment, to imprisonment for a term not exceeding 2 years or an unlimited fine or both. This causes me to raise an eyebrow, because custodial sentences had been abolished for other planning offences. This, therefore, appears to be a retrograde step.

Where a fine is imposed, the court must in particular have regard to any financial benefit which has accrued or appears likely to accrue to that person in consequence of the offence. It is also provided that where, after a person commits an offence under this section, planning permission is granted for any development carried out before the grant of the permission, that grant does not affect the person’s liability for the offence.

Finally, Schedule 17 also amends the Planning (Listed Buildings and Conservation Areas) Act 1990 by enabling any entry in the statutory list of buildings of special architectural or historic interest to provide that a particular object or structure fixed to the building or within the curtilage of the building is not to be treated as part of the building for the purposes of this Act, or that any part or feature of the building is not of special architectural or historic interest. However, this provision applies only to entries for buildings that are listed, or entries that are amended, on or after the date on which this new provision comes into force.

The House of Lords Committee Stage is due to start on 3 December.


Tuesday, 27 November 2012

Agricultural buildings – the prior notification procedure

If you follow comments as they are posted in this blog, you may be aware of a recent discussion on the prior notification procedure in relation to Permitted Development under Part 6 (Class A) of the Second Schedule to the General Permitted Development Order.

More than one correspondent has queried the position where prior notification is given to the local planning authority, but they decide (either then or later) that the development is not in fact PD. Is the LPA under an obligation to respond within 28 days in these circumstances, and what is the legal effect if they do not do so?

The essential point is that if the development falls outside the parameters of Part 6, then it is not Permitted Development. It may exceed the size limit, or the height limit or the distance from the metalled part of a classified road (which includes a ‘C’ class road, incidentally). It might not in any event be reasonably necessary for the purposes of agriculture within that unit. In any such case, it makes no difference when the LPA responds to the notification or whether they do so at all. Giving prior notification cannot make a development PD if it simply doesn’t qualify within Part 6. Such a development cannot be built except with express planning permission.

It is a matter of fact and of law as to whether or not development qualifies as PD under Part 6. If the LPA claims the development is not PD, this is not determinative of the point. They might be wrong. If it turns out that they are wrong, and the development is PD after all, then the 28-day rule would apply, effective from the date of the original prior notification, and the payment of the correct fee (subject to a five-year deadline for commencement of the development).

There are various ways in which the view of the LPA that the development in question is not PD could be challenged. Applying to the High Court for a declaration (as happened in a case I reported late in 2010) is cumbersome and expensive. An application for an LDC would be a much better alternative, and a refusal by the LPA to issue an LDC could be appealed to the Planning Inspectorate. If the farmer is very confident of his position, he could just get on with the development, but this would be a high risk strategy, with the likelihood of enforcement action being attempted by the LPA.

Two correspondents have drawn attention to Annex E of PPG7 (which remains extant, despite the recent bonfire of ministerial planning advice). The advice suggests that in the course of dealing with the prior notification procedure the LPA should verify that the intended development does benefit from permitted development rights, and does not require a planning application. It points out that there is no scope to extend the 28-day determination procedure. A local planning authority will therefore need to take a view during the initial stage as to whether Part 6 rights apply.

However, the crucial point is that if the development in question is not in fact Permitted Development at all, then there is no 28-day period in which the LPA has to do anything. If, as a matter of fact and law, the development in question does not fall within the parameters of Part 6 (for example if it is not reasonably necessary for the purpose of agriculture within the holding) then the notice or application could simply be ignored. In practice, it would be advisable for the LPA to make it clear that they do not agree that the proposed development is Permitted Development within Part 6, but no legal consequences flow from their failure to do so, within 28 days or at all. Annex E to PPG7 does not have the force of law; it is simply ministerial policy guidance, no more than that.

If it turns out that the development does fall within Part 6, then the failure of the LPA to respond to a valid notice (complete with the correct fee) within 28 days would mean that the developer would then have the right to carry out the Permitted Development at any time within 5 years. But if the development does not meet the criteria set out in Part 6, it is not PD and cannot be carried out as such, whether the LPA responded within 28 days, after more than 28 days or did not respond at all.

There may be cases where it only becomes clear some time later that the development in question was not in fact PD under Part 6. Even here, the LPA is not bound by its previous conduct, even if it purported to approve the siting and design of the development. This would give rise to other considerations, including a possible complaint of maladministration, and it might not be ‘expedient’ (in terms of section 172) to take enforcement action in such circumstances. But the fact remains that the development would be unlawful until four years have passed since its substantial completion.


Wednesday, 21 November 2012

The plight of the planners

My recent piece on (allegedly) ‘Worst-performing Local Planning Authorities’ has prompted this comment from a town planner, who must necessarily remain anonymous. You will understand from what I have already written that I entirely sympathise with this officer’s views, and with their analysis of the problems that are accumulating due to cuts. I have absolutely no doubt that things really are as bad as he or she says.

My anonymous correspondent writes:

“As a local government planner, I won’t pretend there aren’t lots of things we could do better and we should always drive towards greater efficiency, but quite simply if experienced, knowledgeable planners are taken out of a planning department – deliberately through retirement/reorganisation, negligently through creating such a stressful work environment they choose to leave, or (equally as bad) as a result of loading unmanageable extra levels of work on them and rendering them effectively unable to devote time to planning (see all heads of planning who are now also heads of regeneration, building control, environmental services, land rec, highways, parks etc) the resulting poorer service is inevitable.

Planners able to deal successfully with Members, consultants and statutory consultees and who are able to see the wood for the trees are either not being replaced or replaced with junior, less experienced staff. Good luck to the next generation coming through who are getting their start in the workplace, but a graduate is never going to be able to fill the hole left by an experienced officer and nor should they be asked to. An experienced officer will not only be doing their own job, but helping everyone else around them - so you don’t just lose one member of staff, you also affect the performance of those that remain.

The warnings of future budget settlements are dire. We’re no longer ‘achieving efficiencies’; rather we’ll see good old cost cutting. No pretence about streamlining or realigning focus, Councils will just have to cut costs regardless of the effect on service. No Senior Planning Officer wants to deliver a poorer service, but if there aren’t the resources to fund anything other than a poorer service, what can they do? There’s only so much clever thinking that can hold off the inevitable.

Most worryingly of all, the professional officers rising to the top in this cost cutting era aren’t going to be your Chief Planning Officer types with 30 years of experience at all levels of planning, who know what it takes to deliver major development (by which I mean not just giving planning permission or getting the funding, but actually seeing something built on the ground). They’ll be cost-cutting management types, who neither understand or care what planning is or does and whose sole focus will be cut, cut, cut.

I’ve heard of one Council who are looking to scrap their entire planning policy section. If true, it’ll be spun well enough, but good luck to everyone involved in doing anything that needs more than a simple DC appraisal there in the future.

I try to tell myself we’ve been here before and sense will ultimately prevail, but another few years of the Coalition’s what-announcement-can-we-make-today approach and local government’s perhaps inevitable response of promoting up the cost-cutting non-planners to deliver cuts rather than the annoying planners who might suggest that doing away with things like planning policy is a bad idea, is going to have big consequences for us as a profession and ultimately for the communities we’re trying to make better.

Some may read this and think of all the poor local government planners they’ve ever had the frustration of dealing with, sitting round drinking tea all day and chatting about ‘I’m a Celebrity’ but trust me, when the department is led by a cost-cutting android, the expensive senior planners are all retired off, those that remain are either so good at their job they’re now also in charge of dog-catching, car parks and tree cutting or are so new and inexperienced that they’re left to get on with it, with no support and no ability to make decisions – everyone will look back on the good old days, where it might not have been as efficient as it should have been, but at least their local planning department had a thread of planning common sense running through its decisions and for good or bad there was some sense of ‘planning’ at the heart of it all.”

Before anyone scoffs at this, bear in mind that it is the 'consumers' of planning services - all sorts of people who need planning permission for a wide variety of developments, and in fact the public generally, who are ultimately going to suffer from all this. It certainly isn't going to deliver the growth the government so desperately wants to promote (or says it does).

© MARTIN H GOODALL (with acknowledgements to my anonymous contributor)

Tuesday, 20 November 2012

Judicial review – the statistics

After Cameron’s speech to the CBI yesterday, it occurred to me to wonder whether there really has been a huge increase in judicial review cases as he alleged. I am grateful to the Guardian for publishing the relevant statistics on their website. I am told that this point was also picked up yesterday on The World at One on Radio 4. It immediately becomes clear that Cameron’s assertion is grossly misleading.

The statistics are divided into three categories – (1) Immigration / asylum, (2) Criminal, and (3) ‘Others’. The first category vastly outnumbers all the others combined. Immigration/asylum cases represent more than three-quarters of all judicial review applications. This is almost undoubtedly a reflection of a basically unfair process which inevitably causes perceived injustice, coupled with the inadequacy of the existing immigration/asylum appeals system. Nonetheless, the success rate in immigration/asylum cases is far lower than in any other category (about 0.6% of all immigration/asylum JR applications), and the successful challenges represent less than 10% of those cases that go forward for a full hearing.

It is this one area that accounts for the entire increase in JR applications, but there are entirely understandable reasons for this, given the government’s clamp-down on immigration/asylum claims in recent years. The hard-line approach the government has adopted has undoubtedly led to an increasing sense of injustice and to a resulting rise in the number of JR applications in this category. However, this increase should not be allowed to distort the overall view of JR cases in the other categories.

The criminal cases are in a special category of their own and represent by far the lowest number of JR applications – only 3% of the total number of applications. They add little or nothing to the statistics.

This leaves the “other” category of JR applications, which cover all the planning, environmental and other cases (such as the Virgin Rail challenge to the West Coast rail franchise decision). The numbers involved are far fewer than the PM would have us believe. When you strip out the immigration/asylum and criminal cases, you are left with just 2,213 JR applications in 2011, of which 527 went forward to a full hearing and 87 were successful (about 4% of all ‘other’ applications, and about 16 or 17% of those that went to a full hearing).

As to the rise in applications, the recent figures for ‘other’ JR applications were 2011 – 2,213, 2010 – 2,091, 2009 – 2,132, 2008 – 2,228, 2007 – 2,059, 2006 – 2,121, 2005 – 1,797, 2004 – 1,685. This does not indicate any recent increase, although the level does seem to have jumped slightly after 2005. I don’t have the figures for the years before 2004.

The percentage of ‘other’ JR claimants getting permission for a full hearing in these years has been 2011 - 24%, 2010 - 20%, 2009 - 21%, 2008 - 22%, 2007 - 22%, 2006 - 19%, 2005 - 21%, 2004 - 29%. One might have expected to see a reduction in the percentage of cases granted permission to go forward if there had been any significant increase in unmeritorious claims, which the PM seemed to be suggesting, but these figures certainly don’t indicate any significant change, other than an apparent drop in the proportion of cases granted permission to proceed after 2004. I am not in a position to say whether 2004 was untypical, or whether there was a change in 2005, compared with previous years.

However, judging by the figures over the past 8 years, Judicial Review does not appear to be a ‘growth industry’, as the PM alleges. The overall increase in JR applications has been solely attributable to immigration/asylum cases. The figures in the criminal and ‘other’ categories look fairly stable over the past few years. This is all too typical of the shoddy research (or compete lack of research) and general superficiality that lies behind ministerial policy initiatives under this government. There really doesn’t seem to be any justification for the prime minister’s strictures, or for any attempted limitation on the existing right to apply for judicial review in the ‘other’ category. (I don’t propose to stray into the minefield of immigration law and policy, which is an entirely different subject.)


Monday, 19 November 2012

PM proposes Judicial Review changes

No doubt there will some fluttering in the legal dovecotes over the threatened reduction in the scope for challenging government decisions by way of an application to the High Court for judicial review (and this would include challenges to planning permissions granted both by local authorities and by ministers).

As is so often the case, the PM’s speech seems to be long on rhetoric and short on concrete proposals, probably because the latter are still the subject of some frantic head-scratching in Whitehall. One idea which will almost certainly come forward is the shortening of the period within which an application for JR can be made. The current rule that the application must be made ‘promptly’ and in any event within 3 months has caused numerous difficulties over the years, and its legality has been doubted. A fixed period, probably 6 weeks, would meet these objections, provided that discretion is allowed to judges to extend this period in exceptional cases. However, if the period is shortened too drastically this could actually lead to more claims being made, as the government discovered when the period for planning appeals was halved some years ago. (The original period had to be restored to cope with the overwhelming workload for the Planning Inspectorate that had resulted.)

Other changes could be more problematic. There remains a need to observe the Aarhus Convention in environmental cases, and increasing the court fees might be open to the same criticisms as were levelled at the costs of JR in Lord Justice Sullivan’s report a couple of years ago. The trend, up to now, has been in the opposite direction, with proposals for increased use of limited costs orders to avoid claimants for JR being potentially bankrupted by the costs of a failed application against a powerful and well-funded public authority. Article 6 of the Declaration of Human Rights also needs to kept in mind – the requirement for a fair trial includes reasonable ‘equality of arms’.

There is already a filtering process, requiring the court to grant permission (‘leave’ as it used to be called) for a JR action to proceed, so unmeritorious claims are already weeded out at an early stage. There seems to be little need or justification for further deterrents to claimants in what are often matters of vital concern to them. Those cases which go forward to a full hearing are ones where there is clearly an arguable point. Claimants are entitled to have these cases tested by the court. Where these claims are allowed and decisions are quashed, it is because there was a serious legal flaw in those decisions, leading to real injustice to the claimant. The government cannot realistically complain about that.

Like so much else in which they meddle, the PM and his cabinet colleagues just don’t seem to have any understanding of how the planning system or the judicial system actually works. It is already well-settled law that the High Court will not ‘second guess’ the decision-maker. The merits of a decision cannot be challenged before the court; there must be a clear legal error either in the decision itself or in the procedure leading to that decision. Only then does the court have the discretion to quash that decision. Furthermore, the court will not quash a decision on a technicality. The mere fact that some legal error can be identified is not enough in itself; the claimant must show that they have been substantially prejudiced by that error, and this involves satisfying the court that upon the decision being re-taken there is a realistic chance that a different decision would then be reached. The court will not intervene if it is likely to result in the same decision being reached, by a route that avoids the legal error that vitiated the original decision-taking process.

In practice, this speech on the part of Cameron may just be another example of a crowd-pleasing pronouncement addressed to a particular audience (a particular failing of Cameron’s even in his days in opposition). He acknowledges that there will have to be consultations about these ideas, and in practice, much of what Cameron was canvassing in his flight of fancy may never see the light of day. Expect to see a change in the application period for JR; this was a change that was already on the cards. But as to the rest, don’t hold your breath.


Worst-performing Local Planning Authorities

I have already commented on Uncle Eric’s nonsensical proposals to take planning applications out of the hands of allegedly under-performing planning authorities, even though the applicants might prefer him not to.

It appears that the sole criterion by which De-CLoG proposes to measure the performance of LPAs is by the percentage of major applications determined within the target period. A less reliable measure of performance would be hard to devise. There are so many variable factors, many of them outside the control of the authority, which can influence the timing of a final decision in these cases.

However, taking this crude measure of performance, Planning magazine has identified the 25 authorities with the lowest percentages of major applications determined within the arbitrary target time. What is interesting about this list is that out of these 25 authorities, only 7 are Labour–controlled, whereas no fewer than 14 are Conservative-controlled (with no one party controlling the other 4). Does Uncle Eric really want to draw attention to the fact that twice as many Tory councils appear in this worst-performing group compared with Labour councils? Pickles named Haringey as the worst performer of any (after incorrectly identifying Hackney, who don’t actually appear in the first 25 at all). But which authority is the second worst in the whole country? It’s the true-blue Royal Borough of Kensington and Chelsea, closely followed by one of the Tories’ Devon strongholds – Torbay. So, by this measure, two out of the worst three councils are Conservative flagships.

So what accounts for the fact that the performance of Tory-controlled authorities seems to be so much worse than that of Labour authorities in determining major applications? Could it be that Tory authorities have been more ruthless and enthusiastic in their cost-cutting, leaving their planning departments struggling to cope with their workload? It is becoming increasingly clear throughout the public sector that swingeing cuts are seriously affecting performance in all sorts of ways, not least because experienced staff with irreplaceable knowledge and expertise in their specialist fields have been lost through this process.

I confess that the whole of this post is written somewhat tongue-in-cheek, because the idea of using the time taken to determine major applications as a realistic or reliable measure of LPA performance is just plain daft. If De-CLoG were seriously intent on measuring performance in a meaningful way, they would use a whole range of indicators, of which the time taken to determine major applications would be only one (and not necessarily the most significant) factor.

We are rapidly approaching the pantomime season, and the government’s various cuckoo-brained ideas about ‘improving’ the performance of the planning system are in some danger of being mistaken for the script of one of these seasonal entertainments.


Wednesday, 14 November 2012

Permitted Development extension consultation out at last

After an inordinate delay (bearing in mind the energy and enthusiasm with which ministers announced their intentions more than 6 weeks ago), De-CLoG has at last published a consultation paper on proposed changes to the Second Schedule to the GPDO, outlining their proposals for increased permitted development rights for domestic extensions and certain other developments. The proposals are fairly simple and straightforward, so the delay is all the more mystifying. What kept them?

Single-storey rear extensions, currently limited to 4 metres for a detached house and 3 metres for other house types, will be increased to 8 metres and 6 metres respectively, although not in ‘protected areas’ (conservation areas, AONBs, etc.). This increase would also apply to conservatories. Other controls and limitations on extensions would be unchanged.

The government also wants to make it easier to carry out the conversion of garages to provide additional residential accommodation (such as a ‘granny annex’). As matters stand, this does not represent a change of use, and it is only physical changes to the garage that might possibly fall outside the scope of Class E. It is this, and restrictive conditions preventing such conversions that the government wants to tackle, although no concrete proposals are put forward.

Shops and financial/professional services establishments are currently able to extend their premises by up to 50 sq m, provided that this does not increase the gross floor space of the original building by more than 25%, and subject to various other limitations. The suggestion is that (except in ‘protected areas’ – conservation areas, AONBs, etc.) these limits should be raised to 100 sq m and 50%. It is also suggested that businesses should be able to build up to the boundary of the premises, except where the boundary is with a residential property (in which case the requirement to leave a 2-metre gap would be retained). The new right would not allow changes to a shop front, or extensions beyond a shop front. Similar increases are also proposed for offices and industrial premises.

As previously announced, the intention is that these extended permitted development rights will apply for only 3 years (starting with the publication of the necessary amendment to the GPDO), and they must actually be completed within that three-year period. This could lead to some interesting enforcement problems where such an extension is well advanced but not yet substantially completed when the three-year period expires. In practice, there is more than a hint that these changes may in fact be made permanent.

The consultation period runs until Christmas Eve. So it’s ‘Merry Christmas!’ from our friends at De-CLoG.


Thursday, 8 November 2012

Uncle Eric goes down with Foot-in-Mouth Disease

It seems that our wonderful Secretary of State has had a bad bout of foot-in-mouth disease this week. In the Commons on Monday he accused the London Borough of Hackney of being the worst performing planning authority in the country. Hackney indignantly denied this, and Pickles has now had Hansard corrected by having the official record of his remark corrected to read ‘Haringey’. Unless I have missed something, I get the impression that Hackney are still waiting for an apology. And they may have to go on waiting - I don’t get the impression that Uncle Eric is the apologising sort somehow.

So now Pickles has insulted not one but two London Boroughs. Needless to say, we are all agog to learn on what basis Pickles makes these accusations. In fact nobody can quite understand on what criteria the assertion about Haringey’s performance is based. Can we look forward to a correction of the correction in Hansard? And which will be the next LPA to be named if Pickles is forced to retract his strictures with regard to Haringey?

Maybe the Secretary of State should refrain from this sort of nonsense, and concentrate on getting on with his job, instead of dishing out gratuitous and apparently ill-founded jibes about hard-pressed and cash-starved local authorities, whose performance has probably been more seriously undermined by the cuts imposed on them by this government than by any other factor.


Permitted development by statutory undertakers

There are some 40 parts to the Second Schedule of the General Permitted Development Order, covering a wide variety of operational development. For example, Part 17 allows organisations such as railway operators, and other transport undertakings, as well as electricity, gas and water companies (among others) to carry out certain works on their operational land. However, this does not give these organisations carte blanche to carry out whatever development they like.

A correspondent has recently drawn my attention to a contentious case in East Grinstead, where the local railway company proposes to add a deck to the station car park, increasing its capacity to 300 cars. The car park currently accommodates 200 cars, and local residents say that cars go in and out via the access road at dangerously high speeds. They are concerned about safety not only on the approach road but on the local highway network, and especially at the junction with the main road, a factor which would clearly be a material consideration in the determination of a planning application. The access road to the car park is also crossed by a public footpath, and this is already considered to be a dangerous crossing place.

However, the railway company claims that the enlargement of the car park is permitted development under Part 17 of the GPDO, and it seems the LPA is prepared to accept this, much to the frustration of local residents, who fear for their safety if the development goes ahead. My correspondent asked me whether this is right.

What Part 17 permits (in Class A) is development by railway undertakers on their operational land, required in connection with the movement of traffic by rail, but such development is not permitted if it consists of or includes the construction or erection otherwise than wholly within a railway station of [among other things] a car park......provided under transport legislation. This poses several problems. I understand that the car park is in fact some distance from the station itself, and so even if it is on “operational land”, there must be some considerable doubt as to whether it is “wholly within a railway station”. One might also question whether the provision of a car park is “required in connection with the movement of traffic by rail”, although a generous interpretation of these words might perhaps include such ancillary facilities.

The precise extent of a railway station is not easily defined, particularly as regards the area ‘outside’ the station and there is widespread uncertainty regarding the interpretation of Part 17. There has in fact been considerable dispute as to whether permitted development rights apply to the entire uncovered station area, such as its forecourt, transport interchange area and car parks. This problem was recognised in the 2003 Review of the GDPO carried out by Nathaniel Lichfield and Partners, but the government has taken no steps to amend Part 17 so as to clarify the situation. On the other hand, there are a couple of reported enforcement notice appeal decisions which seem to indicate a restrictive interpretation of Part 17 by inspectors and by the Secretary of State. For these reasons, my provisional view (on the basis of the recited facts) is that this particular development does not come within the scope of Part 17, and so it needs express planning permission.

The problem now is to convince the LPA that they got it wrong when they told the railway company that the work to add an extra deck to the car park is permitted development. I have not been told whether an LDC was issued; if it was, then getting this revoked might be difficult. But if the LPA simply expressed an informal view on this point, they may still be persuaded to reconsider the matter. No doubt the local residents will be writing to the council and lobbying their local councillors in an effort to persuade the council that a planning application is required for this development, which can then be the subject of the usual consultations, giving the public the right to comment on the proposal.

I don’t know whether the good citizens of East Grinstead are as vociferous as the famously disgusted residents of Tunbridge Wells; but if they are, then the LPA could conceivably find themselves in the High Court if they can’t be persuaded to change their mind on this issue and to insist on a planning application being submitted for the car park development. The appeal decisions mentioned above appear to offer an encouraging precedent if the LPA decides to take enforcement action in the absence of planning permission being sought and granted.


Wednesday, 7 November 2012

Appeal changes mooted

De-CLoG is consulting on some suggested changes to appeal procedures in a “Technical Review of Planning Appeal Procedures”. It is not made entirely clear in the consultation document, but it appears that these proposals relate only to section 78 appeals (against the refusal of planning permission), and do not extend to section 174 appeals (against enforcement notices) or section 195 appeals (against the refusal of a Lawful Development Certificate).

If adopted, the proposals will mean that appeals will be ‘front-loaded’, in the sense that the parties will be required to submit their full appeal statement (currently the ‘Rule 6 Statement’) as part of the grounds of appeal in the appeal form. A draft statement of common ground (‘SCG’) would be required at the same time.

In enforcement appeals it may not be so easy to provide this material at the same time as the appeal goes in, because there is only a very short time in which an appeal can be lodged against an enforcement notice, and it can often be a last-minute rush to get the appeal in before the deadline, let alone compiling additional material at that stage. Having to submit a full statement of case and a draft SCG at the same time might be too much to ask in these cases. However, as indicated above, it does not appear that these proposals are intended to cover section 174 appeals, although there is a veiled threat that they could be extended to cover other types of appeal, including enforcement appeals, in the future.

At present, Rule 6 statements are submitted by both sides six weeks after the ‘start’ date fixed by the Planning Inspectorate, and both the appellant and the local planning authority put in their statements simultaneously. If the rules are changed as DeCLoG suggests, the LPA would not know an appeal is coming in, so their Rule 6 Statement will presumably follow some weeks later. They will in effect be given longer to prepare their statement. If they have by that time had prior sight of the appellant’s full statement, this could be prejudicial to the appellant. It would also negate the saving in time that the change in the rules is intended to achieve.

There is also the issue of comments on the Rule 6 statements (more important in hearing cases than in inquiry cases) and their timing. It seems that what De-CLoG intend is that no further written material should be submitted, except in inquiry cases, where proofs of evidence are exchanged four weeks before the inquiry. I can see one major objection to this. The LPA’s case can sometimes contain some quite erroneous or contentious statements, which the appellant should have the opportunity of countering. If this opportunity is to be removed, it could work injustice in a way that could only be remedied by the High Court. This would seem to be undesirable from any point of view.

More detailed proposals include a rule change to make it a requirement for parties to provide information on the appeal form of the number of witnesses and the length of time they need to give their evidence. This, frankly, would be totally impracticable in many cases. A need to produce a specialist witness on a specific topic as a result of issues raised by the other side, which may not have been foreseen at the outset, may only be recognised some time after the appeal procedure is under way. If PINS is inflexible about this, this may lead to appellants taking the precaution of naming a whole range of witnesses whose attendance at the inquiry is not really necessary, simply in order to avoid their being prevented from dealing with particular issues that might conceivably arise, but which might not. As for time estimates, it is absolutely impossible to predict how long it may take to deal with any particular witness, especially when cross-examination is taken into account (which is entirely outside the control of the party calling the witness).

As foreshadowed in legislation currently going through parliament, a fast-track commercial appeals service is proposed which would mirror the current householder appeals process. However (unlike householder appeals) there would be an element of choice for appellants in adopting the procedure.

Another proposal is to move over wholly to on-line appeals. Many planning professionals already use the on-line system through the Planning Portal, but it may not be so user-friendly from the point of view of a lay person wishing to conduct their own appeal. There is also a need to improve the electronic forms, which are slightly inflexible to use. Uploading electronic material is also a problem. There is often a need to upload far more than the online form can handle, and this then has to be emailed to PINS separately. These issues need to be addressed if electronic filing is to become the norm.