Friday, 28 December 2012
The changes I mentioned in my last post [Rules relaxed for planning applications: Friday, 21 December 2012] prompted an anonymous contributor to post a comment which deserves a post to itself, as it gives rise to a number of further thoughts on this topic.
My correspondent picked up on my comment that the new sub-clause in section 62 (which will provide that LPA information requirements must be reasonable having regard, in particular, to the nature and scale of the proposed development, and that the LPA may require particulars of, or evidence about, a matter only if it is reasonable to think that the matter will be a material consideration in the determination of the application) will not entirely eliminate the problems arising from local validation lists. My correspondent suggests that these changes will do nothing whatsoever even to address the 'local list' and 'validation' problems. On reflection, I fear this may be right.
Anon suggests that to LPAs these 'tools' are not genuinely anything to do with development control (as in controlling actual outcomes) but about controlling the flow rate of applications and thus workload. That is to say, they are about serving the interests of the supply side not the demand side - all in the name of the 'public interest', of course. Half of the information demanded is not understood; the other half they don't read anyway. [I can only add “Hear! Hear!” to that.]
My correspondent has observed with increasing dismay the decay of LPA's DC operations over the last 30 years. There are still some very good people in planning departments who operate beyond the tick-box culture (and who are a pleasure to deal with) but, across the board in general, the silo mentality has triumphed - the pesky public have become the enemy whose unreasonable aspirations must be resisted and re-moulded to fit the pre-determined defaults prescribed.
Let's not forget (Anon continues) that those defaults have been developed and refined over more than 60 years into the current codes guiding what is and what is not acceptable development: deviation is allowed, but only when it fits the discretionary tastes and preferences of the decision maker. The applied defaults will not be given up easily despite the compelling need, for example, to improve radically, not marginally, the energy efficiency of existing buildings. These refined defaults are not merely some part of the DC system, they are the system. Changing those defaults amounts effectively to destroying the system as we know it from that first seminar at college to the last day at work. It is to tear up the very essence of itself. It would be like the legal field throwing out all case law and starting again.
What has been subordinated, if not lost altogether, my correspondent suggests, is respect for that most basic of all canons of development control: the presumption in favour of development. Instead, everything has to be justified by the applicant: Design & Access Statements - which go unread anyway; plus all the information set out in local lists etc. My correspondent doubts whether LPAs will have much regard for the requirement of reasonableness, even when it is enshrined in the new sub-section 62(4A) which I cited.
All 'requirements' for a valid application beyond a simple form should be abolished, including application fees, my correspondent proposes. Development control is necessary but not sufficient in its current form to be a system fit for purpose; it is far too focused on stopping, instead of enabling development and too often hijacked for invalid reasons and agendas. At this point my correspondent ended their rant [their own word] and wished us all a Merry Xmas.
My reason for devoting an entire post to this anonymous comment is that there is much in what my correspondent writes with which I agree. The changes to the DMPO and the new sub-section in section 62 may not be sufficient to change the mind-set which is now deeply entrenched in planning departments around the country that planning applications should not be registered until every last dot and comma is in place, as required by the local validation check-list. I even had a refusal by one LPA to register an application for an LDC because I had not sent in a copy of the full planning application check-list itself, duly ticked to show which items were included, despite my having pointed out that only one single item in the list (viz: a site plan) was actually required in that case, and it should have been obvious even to the dimmest junior admin assistant that this item had indeed accompanied the application. As my anonymous contributor suggests, this nonsense has a lot more to do with controlling workflow than any genuine need for the information demanded, much of which is not read anyway in most cases.
So I entirely agree that the only sure way of putting an end to this nonsense is to abolish local validation checklists altogether. LPAs could still request additional information after the application is registered, if they really need it, as they were entitled to do under an earlier version of section 62, when the applicant had the option of appealing against this under section 78 and in effect running an appeal against deemed refusal by reason of the LPA’s failure to determine the application. Design & Access Statements are equally unnecessary; we did without them for over 50 years and still managed to have a reasonably reliable and efficient development control system. There is also a respectable case to be made against the payment of application fees (and I have put this forward myself in the past), but that argument will have to await another post.
I was recently discussing the development management process with a planning consultant with whom I have done a great deal of work over the years. We rapidly came to the conclusion that the planning system could be immeasurably improved simply by repealing all the amending legislation (both primary and subordinate) introduced in the past 20 years or so, starting with what used to be section 54A of the 1990 Act (now section 38(6) of the 2004 Act). Every change since then, both to the development plan system and to the development management process has been downright damaging to the system and unhelpful to its users. If the government was really serious about sorting out the bureaucratic log-jams caused by the planning system (instead of indulging, like governments of all political persuasions, in empty gesture politics) they would take a radical initiative on this scale, rather than tinkering yet again with the details.
© MARTIN H GOODALL
Friday, 21 December 2012
I am grateful to my colleague David Brock for drawing attention to the Town and Country Planning (Development Management Procedure) (England) (Amendment No. 3) Order 2012 made on 17 December, and due to come into force on 31 January 2013, which makes some welcome changes to the procedural requirements for submitting planning applications.
The amendment order relaxes the requirements of Article 4 of the DMPO in respect of outline applications and allows for certain details of the development which under the DMPO had to be included in the outline application to be treated in future as reserved matters for later approval by the LPA.
The version of the DMPO in force up to now required that where layout is a reserved matter, the application must state the approximate location of buildings, routes and open spaces and where scale is a reserved matter the application must state the upper and lower limit for the height, width and length of each building. The effect of the amendment is to remove the requirement to provide these details at the outline stage where layout and scale have been reserved. This effectively puts the position back to where it was before these requirements were imposed several years ago.
So far so good, but we still have to deal with those pesky ‘local lists’ setting out the LPA’s information requirements before the application can be registered. The amendment order does make a minor change to this requirement (although I confess that I do not understand precisely what practical effect this change will have in practice). In future, the only information requirements which are to apply to a particular planning application (i.e. all applications, not just outline applications) are those on a ‘local list’ which has been published or republished within two years before the planning application is made. This provision is to apply to all planning applications made after “31st June 2013” [sic]. I don’t think this is a misprint for 31st January, as it is presumably intended to give LPAs the chance to revise and update their local lists before this change takes effect. If the idea is that they should have six months in which to do so, then the date is presumably intended to read “31st July 2013”, and a correction will no doubt be issued to that effect.
For one wild moment, I thought we might have a window of opportunity early in the New Year to bang in applications without providing any of the information required in current local lists (unless LPAs had been very quick off the mark in republishing their local lists). However, a reality check suggests that no such thing was intended, but it does mean that LPAs must revisit their local lists within the next few months, and then again at intervals of not more than two years. My fear, however, is that these local lists will simply be re-published unamended or with only the most superficial changes, and so no advantage will in practice accrue from this amendment to the DMPO.
I have not had time yet to post my comments on the Growth and Infrastructure Bill, but it contains a welcome change in Clause 4 that will provide that in section 62 of the 1990 Act a new sub-section is to be inserted after subsection (4) (limitation of power under section 62(3) to require inclusion of particulars and evidence in an application) which will read -
“(4A) Also, a requirement under subsection (3) in respect of an application for planning permission for development of land in England—
(a) must be reasonable having regard, in particular, to the nature and scale of the proposed development; and
(b) may require particulars of, or evidence about, a matter only if it is reasonable to think that the matter will be a material consideration in the determination of the application.”
I have been asking for this change ever since the judgment of Langstaff J in Newcastle Upon Tyne City Council v SSCLG  EWHC 3469 (Admin), so that the right of appeal under section 78 is restored where an LPA is being unreasonable in demanding additional information before registering a planning application. [See “Validation dispute goes pear-shaped” : Wednesday, 5 May 2010, and “A much-needed reform” : Friday, 13 August 2010.]
However, even this will not entirely eliminate the problems arising from local validation lists. De-CLoG really needs to get to grips with these local lists by assuming some sort of supervisory oversight of their requirements or by taking powers for the Secretary of State to relax the requirements of a local list where he considers those requirements to be unduly onerous on applicants. However, I am not currently aware of any such proposals. There really ought to be some way in which applicants can be relieved of the obligation to provide information which is in practice entirely unnecessary or irrelevant in the context of the particular application in question. At present, junior administrative staff, taking a ‘tick-box’ approach, are all too likely summarily to throw back applications for failure to comply with the requirements of the local list, rather than taking a pragmatic approach, and only asking for the information that is genuinely required, while forgetting about those items that are clearly not appropriate to the application before them. The restoration of the right to appeal in these circumstances against non-determination under section 78 is not the whole answer to the problem; developers and their professional advisers would much prefer that these problems over the registration of applications should not arise in the first place.
As this may be my last post before Christmas, may I take this opportunity of wishing all my readers a Very Merry Christmas. I may possibly publish one or more further posts before New Year’s Day, but in case I don’t get that elusive ‘round tuit’ in my Christmas stocking, let me also add my best wishes for a Happy, Healthy and Prosperous New Year.
UPDATE: (14 Jan 2013) My guess that "31 June" should read "31 July" was correct. The Order has now been changed to remedy this misprint. Incidentally, I did not spell it out in my orignal post, but the amendment to the DMPO abolishes the short national validation checklist as such, although the information previously specified in that list will clearly continue to be essential, and may well be inserted in local checklists in future.
© MARTIN H GOODALL
Thursday, 13 December 2012
Chris Grayling, the Lord Chancellor / Justice Secretary, has published a consultation paper setting out proposals that are deliberately aimed at reducing the number of Judicial Review applications, by making it more difficult and more expensive to apply for judicial review. Allegedly, these ideas are targeted at ‘weak or ill-founded’ judicial reviews, but their catch-all nature will affect all JR applications, not just the unmeritorious ones.
I had expected a suggested reduction in the time limit for making an application for permission to bring a claim for JR, and suggested that it might be sensible for the time limit to be brought into line with the six-week (42-day) time limit that applies to statutory High Court challenges to planning appeal decisions under section 288 of the Town & Country Planning Act 1990. This is what is now being proposed in planning cases “when the claimant knew or ought to have known of the grounds for the claim”. (In procurement cases , i.e. decisions or actions within the ambit of the Public Contracts Regulations, Grayling is suggesting that the time limit should be just 30 days from the date of the decision that is being challenged, which won’t make lawyers dealing with that type of case very happy).
Bearing in mind that an informal six-week time limit had been applied by the courts in planning cases, prior to the House of Lords decision in Birkett, there cannot really be any serious objection to the time limit being set at this level. However, it appears that in the interests of justice the Court will still have the discretion to extend time, in order to cater for exceptional circumstances, which are bound to occur from time to time. The removal of this discretion (which has always been sparingly exercised by the courts) would have caused injustice, particularly to amenity groups and other members of the public who do not have the legal and financial resources enjoyed by major developers and other commercial organisations, and who may therefore need extra time, including the time required to organise the funding of such litigation in some cases. Continued compliance with the Aarhus Convention would have required this in any event.
A point which immediately arises, and which is addressed by the consultation paper (but without a precise answer being suggested) is precisely at what point grounds of challenge should be said to arise. In planning cases, after Birkett, it is currently the date on which the planning permission under challenge is actually issued, rather than the date of the resolution leading to the grant of that planning permission. Grayling’s suggestion that time should run from the earliest date on which grounds of challenge arose could, in principle, put the date back to the original committee resolution. However, much can happen between such a resolution being passed and a planning permission actually being issued, and it is well settled law that the decision-maker must take into account any change of circumstances between the resolution being passed and the permission being issued (see Kides v. S Cambs DC  EWCA Civ 926). Thus grounds of challenge (or additional grounds) might well arise between these two dates, and so it would probably be best to leave this rule derived from Birkett undisturbed. To do otherwise might encourage premature JR claims, when the matter might be resolved prior to any final and irrevocable action being taken by the authority.
The proposals also seek to tighten the procedural rules for applying for the Court’s permission to bring a claim for JR. The government’s proposal is that in cases where the claimant has been refused permission on the papers, and the matter is one which has been the subject of a prior judicial hearing, the claimant’s right to ask for an oral renewal of the application for permission should be removed. This is unlikely to affect most planning cases, although it might be relevant in cases like the Dale Farm saga and similar gypsy/traveller cases, where there has been a course of previous litigation. Any appeal to the Court of Appeal would also be on the papers only (a change that has already occurred, following amendment of the Civil Procedure Rules (Rule 54.7A and 52.15(4)) with effect from 1 October 2012).
The government has clearly had to steer a careful course here. Judicial Review may be the only available route for a claimant to challenge a decision, and so the procedure must not act as a barrier to access to justice, failing which it might infringe the requirements of Article 6 of the European Convention on Human Rights (the right to a fair and public hearing). The government’s reasoning is that the changes they propose will only act as a procedural barrier where there has been a prior judicial process involving a hearing (thus satisfying Article 6) or where the claimant has failed to make out a claim to be determined (and so has not engaged Article 6 substantively). In these circumstances, they believe, their proposals would operate compatibly with Article 6.
There is, however, a sting in the tail. The government is still proposing to remove the right to an oral renewal where the case is assessed as totally without merit. It seems that this is primarily targeted at immigration and asylum cases. It could prove to be somewhat controversial. The idea is that the judge reviewing whether to grant permission may, if he or she considers that no arguable case is made out, also decide that it is “totally without merit”. In the context of immigration, where a judge finds that a case is totally without merit, they may also state that oral renewal is no bar to removal, which means that an application for renewal will not of itself be sufficient to defer that removal, and the claimant will have to obtain an injunction to prevent it.
Finally, the government intends to hike the application fees for JR as an added disincentive to claimants. As matters stand at the moment, a party who wishes to bring Judicial Review proceedings in the High Court must pay an initial fee of £60, and where permission is granted a further fee of £215 is payable by the claimant before the matter can proceed to trial. There is no fee for an oral renewal of the application for permission. The government has already conducted a previous consultation exercise, which proposes to increase the fee both for an application for permission to bring a Judicial Review and then to proceed to trial to £235 (i.e. £470 in total). They now propose to tinker further with this, by introducing an extra fee for an oral renewal at the same level as for a full hearing of the Judicial Review (i.e. £235). On the other hand, where the application for permission is successful, they propose to waive the further fee for a full Judicial Review hearing. The rationale for this is that an applicant who is successful in securing permission for Judicial Review at an oral reconsideration would not have to pay any more than one who was successful on written submissions. Those entitled to a fee remission would have their fees reduced or waived. However, as I and other commentators have pointed out before, there must be some doubt as to whether these fee increases would put us in breach of the Aarhus Convention in relation to environmental challenges (including planning cases).
It is abundantly clear that in relation to planning cases, the number of judicial review applications coming forward does not even begin to justify the alleged grounds on which the government’s proposals are based. The total numbers are modest (only 191 in total in 2011), and there is no evidence that there is a disproportionate number of ‘unmeritorious’ claims within this group, still less that the proportion of such allegedly hopeless cases is on the increase. A respectable argument can be made in favour of the proposed six-week time limit, but it does not derive in any way from the quoted statistics; it simply removes an element of uncertainty which was arguably in breach of European law on this issue.
There will no doubt be detailed and well argued objections to some of these reforms, especially those which impact on immigration and asylum cases, and thereby raise issues of equality and human rights. The extent to which the government takes notice of the reasoned objections that can be expected will be a telling test of how honest and honourable this government really is.
© MARTIN H GOODALL
Sunday, 2 December 2012
Labour MP Frank Dobson has obtained more detailed figures for judicial review applications from the Ministry of Justice, in a written answer to a parliamentary question which appeared in Hansard last Monday (26 November). He asked the Secretary of State for Justice how many applications for judicial review related to planning or infrastructure proposals have been made in each year since 1998, and how many of those applications were (a) allowed to proceed to a hearing and (b) granted.
Until I saw these figures, I had assumed that planning cases would account for a majority of the ‘other’ cases in the JR statistics previously quoted. Not so. The numbers of JR (i.e. non-statutory) cases relating to town and country planning in the period in question were: 1998 – 112; 1999 – 116; 2000 – 121; 2001 – 142; 2002 – 119; 2003 – 122; 2004 – 119; 2005 – 140; 2006 – 142; 2007 – 151; 2008 – 184; 2009 – 165; 2010 – 148; 2011 – 191.
The first point which is immediately apparent is the very low numbers, compared with the total of JR applications in those same years. These figures pale into insignificance, compared with the headline total of 11,200 JR applications last year being bandied about by the government. In fact, even as a proportion of ‘other’ JR applications (i.e. other than immigration/asylum and criminal cases), planning-related cases account for only about 7 or 8 per cent (9% at most, in some years). As a proportion of all JR applications, planning-related JR applications account for less than 2% of the whole!
It is also clear that the upward trend in the number of applications (if there is one) is uneven. Numbers have gone down as well as up over the past 14 years - for example in 2002 (down 16% on 2001), 2004 (down 2% on 2003, and still down 2% on 2001), 2009 (down 10% on 2008) and 2010 (down 10% on 2009, and down 20% on 2008). The 191 planning-related JR applications in 2011 represent quite a jump compared with 2010 but, on previous performance, it is quite possible that 2012 might possibly see a drop in this number.
The fact remains that 29% of a very small number (comparing the increase in 2011 over 2010) is still a very small number. This is hardly a “growth industry”, as the PM described it in his CBI speech.
The other point which seemed to be exercising the PM was an alleged rise in the number of ‘hopeless’ JR applications. The answer to Frank Dobson’s question also shed light on this. The number of cases that received permission from the Court to proceed (and the percentage of total planning-related JR cases which these figure represent in each year) were: 1998 – 51 (= 46%); 1999 – 56 (= 48%); 2000 – 68 (= 56%); 2001 – 63 (= 44%); 2002 – 47 (= 39%); 2003 – 54 (= 44%); 2004 – 49 (= 41%); 2005 – 44 (= 31%); 2006 – 50 (= 35%); 2007 – 51 (= 34%); 2008 – 67 (= 36%); 2009 – 64 (= 39%); 2010 – 46 (= 31%); 2011 – 61 (= 32%).
Thus, in most years, at least a third of planning-related JR application were given permission to proceed, which is a much higher proportion than the average for other types of JR application. Furthermore, it is not possible to discern any clear trend from these figures which would suggest that there has been any increase in hopeless applications in this area of the law. The notion that Cameron was peddling that there is a rising tide of hopeless JR applications, made simply as a delaying tactic to frustrate development projects, is clearly nonsense. There is already an effective process to weed out unarguable cases, and it is hard to see how a more stringent procedure could be devised without going into the case in more detail to ascertain whether it is not merely arguable but stands a reasonable chance of success. This would turn the initial filtering process into something much more akin to a substantive hearing, and would entirely defeat the object of the exercise.
Finally, the figures show the number of planning-related JR applications that are granted, i.e. where a quashing order is made or other appropriate relief is granted by the Court. These were (with the percentage success rates, compared with the number of cases given permission for a substantive hearing): 1998 – 10 (= 20%); 1999 – 19 (= 34%); 2000 – 29 (= 43%); 2001 – 17 (= 27%); 2002 – 12 (= 26%); 2003 – 11 (= 20%); 2004 – 10 (= 20%); 2005 – 11 (= 25%); 2006 – 7 (= 14%); 2007 – 17 (= 33%); 2008 – 14 (= 21%); 2009 – 15 (= 23%); 2010 – 17 (= 37%); 2011 – 6 (= 10%).
There is no discernible trend in these figure. Clearly, each of these cases was arguable; otherwise they would not have been given permission to proceed, but the success rate is bound to vary, and I am not aware that it has ever been significantly higher than these figures would appear to suggest. As it is, there seems to be a greater chance of success in planning-related JR cases than in other types of JR application.
These figures certainly do not justify any significant procedural change in relation to judicial review applications. As matters stand at present, a claim for JR is initially considered by a judge on the papers, and if dismissed can then be renewed for oral hearing before another judge. The government seems to want to stop the process at that point, whereas at present the application for permission to proceed can be taken on to the Court of Appeal and, in rare cases, to the Supreme Court - a change brought about by the case of Birkett, reversing the previous ruling in Re Poh (which had prevented such an application being appealed from the Court of Appeal to the House of Lords).
As I indicated in my earlier post on this topic, and as a number of other planning and public law specialists have pointed out, Cameron’s other proposal - that it should be made more expensive to apply for JR - would appear to be in breach of the Aarhus Convention, so far as environment-related cases (which would include planning) are concerned. It was precisely in order to ensure compliance with the convention that the MoJ put forward proposals only a few months ago to limit the costs in environment-related judicial review cases.
In addition to these statistics on JR, Hilary Benn, who shadows the communities and local government brief for Labour, asked for the figures for statutory quashing applications under sections 288 and 289 of the 1990 Act. A written reply to this question was also printed in Hansard for 26 November, and if time allows I will take a look at it in a future post.
© MARTIN H GOODALL