Friday, 26 April 2013

The domestic extensions fiasco

Readers who have been following this blog for the past few years may recall that Stephen Ibbitson has contributed a couple of guest posts during that time on the subject of Permitted Development, a topic of which he has made a particular study.

My piece the other day on the newly proposed permitted development rights for larger domestic extensions prompted Stephen to contribute the following comment, which I am very pleased to be able to publish as a guest post.

[I should just mention that all the Statutory Instruments to which Stephen refers are various versions of the General Development Order and the General Permitted Development Order that have appeared over the years, starting in 1948. In particular, SI 1995 No 418 was the original version of the current GPDO, and SI 2008 No 2362 was the notorious amending Order which replaced Part 1 of the Second Schedule with effect from 1 October 2008. The history of this area of secondary legislation is indeed a sorry tale.]


Great stuff Martin. I'd been hoping your next post would be on this subject ever since this fiasco-in-waiting was announced.

You've covered the salient points arising from these proposals, but I'd like to flag up a more basic matter concerning PD and neighbours generally which I think illustrates the heart of the problem. Facing up to the nub of this requires the asking of two questions which are actually one and the same. But before I pose those questions, it is perhaps worth reminding ourselves what PD has been about all these years. So here goes.

From Ministry of Town and Country Planning Circular 87, 1950 para. 4, introducing the purpose of SI 1950 No 728 (amending the first householder GDO, SI 1948 No 958 which created PD rights for outbuildings only, not extensions to dwellinghouses):

" remove from the need to obtain express planning permission, a number of minor applications which have so far occupied an amount of time and manpower out of all proportion to their importance to planning."

W.A.Leach, commenting on the technical and detailed nature of the 1950 Order, observed:

"It is evident as soon as Article 2 of the Order is reached that the parliamentary draftsmen are losing their grip."

Well, perhaps not as much as their successors, some might think, and I would agree. SI 1950 No 728 was subject to all sorts of minor amendments over the years until SI 1988 No 1813 came about as a result of 'consolidation' that year. This suggests that the draftsmen were not that wide of the mark. Had they been so, any amendments in the intervening four decades would have been somewhat more than merely 'minor'.

Development Orders seek to strike a balance between reasonable degrees of freedom for householders (but not as far as an 'unrestrained whim' !) to enlarge and alter their homes without applying for permission on the one hand, and the various impacts such development might have on neighbours and public views on the other. Fair enough; that's much the same as LPAs do in determining a planning application, as we all know.

But any Development Order, just like any outcome from submitting a planning application, is inevitably imperfect; there will always be disappointed parties in any contentious proposal, minor or otherwise, whether the development is under deemed or express consent. Anyone who has sat through a planning committee will have seen this at first hand. (Incidentally, this point exposes the fallacy promulgated by some folk in the LPA/planning sphere that all you've got to do to eliminate neighbour difficulties, and the tiresome business of ward councillors having to field letters of complaint, is to abolish PD rights entirely and run everything through the full planning permission route. Nothing to do with fee income and massive departmental expansion or empire building, then?)

So to the questions -

First question to a (any) householder: "Would you like more control over/say in/veto on what your neighbour can do to his house/garden?"

Second question to the same householder: "Would you like your neighbour to have more control over/say in/ veto on what you can do to your house/garden?"

I submit that most people's instinctive, spontaneous response to the first question will be "Yes" whilst the response to the second will be "No". Yet, as but a moment's thought reveals, each question is exactly the same! If you answer "Yes" to the first, you are automatically saying "Yes" to the second.

Perhaps those questions should be asked of the 'rebel' backbenchers (26 of them, was it?) who forced ministers into this dog's dinner of a measure. Perhaps they think you really can answer ‘Yes’ to one and ‘No’ to the other.

The root of the government's problem in trying to expand PD to promote building activity is that ‘Ford Edsel’ of Development Orders, SI 2008 No 2362. Six or more years and three separate 'consultations' in the making, this supposedly liberalising amendment was anything but that. Apart from other flaws (mostly in interpretation of novel terms---those consultants again) the 3 metre and 4 metre rear extension depth limits (respectively for terrace/semi and detached) were always going to be too restrictive. For example, a gross depth of 3 metres yields a net depth of 2.7m (9ft) which for many people just ain't enough - not enough space in its own right and not enough space for the money; in most instances an extra 1 metre would barely cost any more.

Ironically, the limits of 3 metres and 4 metres were introduced by De-CLoG at the very last minute, so to speak, from the originally formulated limits of 4 metres and 5 metres! It has been suggested that this was in response to shrill cries of ‘Foul!’ and dire warnings from LPA interests that allowing such large increases would be disastrous. (Nothing to do with the lower limits generating more applications for express permission, of course!). Never mind that SI 1995 No 418, in allowing a volumetric increase of 70 cubic metres (or 50 for terrace and Article 1(5) land) enabled a householder to build a 2.5 metre high x 3.6 metre wide and 7.7 metre deep extension. The claim was that if the 2008 amendment (as originally proposed) were to allow a full 4 metres of rear extension depth then the world would come to an end!

Said otherwise, had De-CLoG and their consultants left SI 1995 No 418 alone, then the government would not now have had to poke a stick into the hornets’ nest by seeking to expand the limits at much political cost. SI 2008 No 2362 was poorly understood by both De-CLoG and ministers when introduced (as evidenced by the lack of an explanatory Circular; they couldn't explain the new regulations to others because they didn't understand them themselves!) and the history of PD (nearly 60 years of refinement and evolution) was even less understood by their consultants, with their arrogant assumption that all the PD regime required to sort out its (alleged) deficiencies was a dose of their expertise. As it is, they've found out the hard way (but presumably been paid, nonetheless) exactly why decades of their predecessors used volumetric rather than dimensional limits.

Incidentally, if SI 2008 No 2362 was such a great creation, how is it that the Welsh Assembly Government has not implemented it nearly five years on?

The government rebels who foisted the compromise on Uncle Eric seem to want to live in a world where ‘Yes’ and ‘No’ mean the same thing, like wishing that people can be half-pregnant. Wake up, Parliament, I say, and have the courage of your convictions: either a development is PD or it’s not. Either you are granting a general planning permission or you're not. Time to make up your minds.

Lastly, as Martin observes, why the Primary Legislation route instead of a just a new Statutory Instrument amending the GPDO? Baffling.”


Wednesday, 24 April 2013

Domestic extensions – a messy U-turn

One of the problems of making policy on the hoof, as this government should long since have discovered, is that it frequently results in some embarrassing reversals and even squealing hand-brake turns when some bright new idea turns out to be unexpectedly unpopular or downright impracticable.

The proposal, announced in a great fanfare last Autumn, to allow much larger domestic extensions as permitted development is the latest example. It would involve too much loss of face for the government simply to drop the idea, and so we now have an unwieldy proposal for a prior notification procedure for such extensions, the details of which are still far from clear.

Following the latest government amendments to the Growth and Infrastructure Bill, Section 61 of the Town and Country Planning Act 1990 will be amended by adding a new sub-clause (2B), which will provide that, without prejudice to the generality of subsection (1), a development order may [not ‘must’] include provision for ensuring –

(a) that, before a person in reliance on planning permission granted by the order carries out development of land in England that is a dwelling house or is within the curtilage of a dwelling house -

(i) a written description, and a plan*, of the proposed development are given to the local planning authority [* but not elevations apparently?],

(ii) notice of the proposed development, and of the period during which representations about it may be made to the local planning authority, is served by the local planning authority on the owner or occupier of any adjoining premises, and

(iii) that period has ended, and

(b) that, where within that period an owner or occupier of any adjoining premises objects to the proposed development, it may be carried out in reliance on the permission only if the local planning authority consider that it would not have an unacceptable impact on the amenity of adjoining premises.

[Note that the actual length of the consultation period is not actually specified here.]

"Adjoining premises" in this sub-section includes any land adjoining the dwelling house concerned, or the boundary of its curtilage. As drafted, this means any land, although it makes no sense to bother about an adjoining open site (such as farmland), and it would have been more sensible to restrict the requirement to any adjoining dwellinghouse and its curtilage.

The government intends that this should be “a light-touch neighbourhood consultation scheme”, but in practice it could well turn out to be a bureaucratic nightmare. It was obvious from what Baroness Hanham told the House of Lords on Monday that ministers are making this up as they go along, and have not even begun to think through the details. The current version of what the government intends is that a homeowner wishing to build an extension will notify the local planning authority and provide plans and a written description of the proposal. The local authority will then notify the adjoining neighbours (the owners or occupiers of properties that share a boundary, including those at the rear).

The details, we are told will be set out in an amendment to the GPDO, but the intention is that neighbours will have 21 days in which to make an objection. (21 days from when precisely?) If no neighbours object, the authority will notify the home owner that they are able to proceed with the development. If any neighbour raises an objection, the authority will then consider the case on the single issue of whether the impact of the proposed extension on the amenity of neighbours is acceptable. This suggests that other considerations (such as section 38(6) of the 2004 Act) are not intended to apply – an interesting concept. Baroness Hanham announced airily that it would be up to individual councils to decide how they handle the consideration of these proposals, so that the decision may either be delegated to officers or made by a planning committee. Contrary to some suggestions, ward councillors will definitely not be the arbiters.

If approval is not given, the home owner will be able to appeal against a refusal or may wish to submit a full planning application. The home owner will be able to appeal against a refusal of consent. There will, of course, be no third party right of appeal for objectors if the extension is approved by the LPA. It seems that the government is not proposing to charge an application fee, but that may very well change. Objections to this on grounds of cost are already being made by local authority representatives.

Lady Hanham expressed the pious hope that local authorities will not resort to using Article 4 directions to remove the new permitted development rights. The Secretary of State could in fact thwart any such attempts (as previously discussed in this blog), although it might be politically embarrassing to have to do so.

There remain numerous uncertainties, which will only be resolved when we see the actual amendments that are proposed to Part 1, Class A of the Second Schedule to the GPDO. It is possible that the prior notification procedure might be applied not only to the larger extensions that are now intended to become permitted development, but perhaps to all extensions under Part 1, Class A.

As to appeals and enforcement, I don’t suppose that civil servants at De-CLoG have even had time to start thinking about this yet. It must be very difficult for them when they have a government that seems to make up policy as they go along, without any prior thought being given to the practicalities of what they are proposing – hence the numerous U-turns and back-tracking we have seen over the last three years.

What I find puzzling is why the government thought it necessary to legislate on this in the Growth and Infrastructure Bill in the first place. The Secretary of State already had full powers to make and amend development orders, and so he could have amended the GPDO without need of further primary legislation, just as his predecessor did when Part 1 of the Second Schedule was re-written in 2008.

And all this for something that is only intended to last for three years! I think the betting must be on its being made permanent, unless it proves to be such a shambles that the next government, which will be in power by the time the three-year period comes to an end, decides that the best thing would be to pull the plug on the whole mess.

What a way to run a planning system!


Saturday, 13 April 2013

Permitted Development within the Curtilage of a Listed Building or in a Conservation Area

Here are a couple of quiz questions for the planning professionals among our readers:

Question 1 - Hands up if you think that, in England, the enlargement, improvement or other alteration of a dwellinghouse which would consist of or include the erection of a building within the curtilage of a listed building is not permitted development (under Class 1, Part A).

Question 2 - Hands up if you think that, in England, permitted development under Part 1, Class E is restricted in size to no more than 10 cu m if the property is in a Conservation Area.

I am willing to bet that there are quite a few people who thought that the answer to both these questions was ‘Yes’. In fact even the editors of the two main practitioners’ text books – the Encyclopedia of Planning Law and Practice and Development Control Practice seem to be under this impression, judging from their respective commentaries on this legislation.

If the property in question is in Wales, then this is certainly the case, at least for the foreseeable future, because the pre-October 2008 version of Part 1 of the Second Schedule to the GPDO, which continues to apply in the principality, said precisely this. The references in the pre-October 2008 version of the Order are paragraphs A.1(g) and E.1(f) respectively.

However, it seems to have escaped the attention of nearly everyone that the revised version of Part 1 that was substituted, in England only, by the Town and Country Planning (General Permitted Development) (Amendment) (No.2) (England) Order 2008 (SI 2008/2362), with effect from October 1, 2008 changed these provisions.

What had been paragraph A.1(g), precluding the enlargement, improvement or other alteration of a dwellinghouse which would consist of or include the erection of a building within the curtilage of a listed building, was omitted from the post-October 2008 version of Part 1. It was presumably felt that such an enlargement, improvement or other alteration of the listed building would be likely to affect its character as such, and so any necessary control over such an extension would be adequately provided by the requirement for Listed Building Consent. Thus, in England, since 1 October 2008, the enlargement, improvement or other alteration of a dwellinghouse is Permitted Development under Part 1, Class A, even if the dwellinghouse in question is a Listed Building. In most cases, of course, it will require LBC, but (until LBC and planning permission are merged into a single consent) planning permission is not required as such.

Part 1, Class E comprises the provision within the curtilage of the dwellinghouse of any building or enclosure, swimming or other pool, provided that the building or structure in question is "required for a purpose incidental to the enjoyment of the dwellinghouse as such". This permitted development right extends also to a container used for domestic heating purposes for the storage of oil or LPG (but does not include the stipulation that it should be required for a purpose incidental to the enjoyment of the dwellinghouse as such). However, development is not permitted by Class E if the building, enclosure, pool or container would be situated within the curtilage of a listed building.

As regards curtilage development under Class E which is not within the curtilage of a listed building, what had been paragraph E.1(f) in the pre-October 2008 version of Part 1, restricting the size of curtilage development to no more than 10 cu m in cubic content if the property was situated within “any Article 1(5) land” (i.e. land within a National Park, AONB, Conservation Area, the Broads or a World Heritage Site), was changed in the post-October 2008 version of Part 1 so that what is now paragraph E.2 no longer refers to “Article 1(5) land” as such, but lists only land within a World Heritage site, a National Park, an AONB, or the Broads, and therefore omits land within a Conservation Area. The restriction in the specified areas is also amended, so that the limit, which now relates to a cumulative total of 10 sq m in area, only applies to the aggregate of buildings, enclosures, pools and containers situated more than 20 metres from any wall of the dwellinghouse.

On the other hand, paragraph E.3 does refer to “Article 1(5) land”, so this paragraph does still include Conservation Areas. This precludes development under Class E if any part of the building, enclosure, pool or container would be situated on land between a wall forming a side elevation of the dwellinghouse and the boundary of the curtilage of the dwellinghouse.

Incidentally, I have deliberately omitted one of the categories listed above under the definition of “Article 1(5) land”. This is “an area specified by the Secretary of State and the Minister of Agriculture , Fisheries and Food for the purposes of section 41(3) of the Wildlife and Countryside Act 1981” (which relates to the enhancement and protection of the natural beauty and amenity of the countryside). David Brock and I were wondering a few weeks back whether any such areas had ever been specified under that section, so I fired off an email to both DEFRA and De-CLoG. DEFRA hadn’t a clue, and De-CLoG never replied! So your guess is as good as mine, although I strongly suspect that no such areas have ever been specified.

As noted above, the current version (in England) of Part 1, Class E does contain a prohibition, in the current paragraph E.1(f), of permitted development under this class if the building, enclosure, pool or container would be situated within the curtilage of a listed building.

Just to add to the apparent anomalies in the legislation, there has never been a prohibition in the case of a listed building (either under the pre-2008 or the post-2008 version of Part 1) on permitted development consisting of an addition or alteration to the roof of a dwellinghouse (under Part 1, Class B). So, subject to the limitations and conditions set out in Class B, roof extensions or alterations to such a house would be permitted development, even if it is a listed building. Again, this apparent omission is no doubt explained by the fact that such an extension or alteration to the roof of the listed building would amount to an alteration affecting its character as such, so that any necessary control over development of this kind would be adequately provided by the requirement for Listed Building Consent.

There is one important proviso in relation to permitted development under Part 1, Class B. Within "Article 1(5) land" (which includes a Conservation Area), additions or alterations to the roof are entirely precluded.

The train of thought that led to my writing this note was prompted by an enquiry that raised a slightly different point. This related to a situation, which I imagine is not uncommon, where a building has been listed, and land within its curtilage has then been sold off and one or more new houses have been built (with planning permission) on that former curtilage land.

So far as the extent of the listing is concerned, the relevant 'curtilage' for this purpose is the curtilage of the building that has been listed at the time of its original listing. However, as I have repeatedly pointed out, this would apply only to that part of the original garden land that was genuinely within the curtilage of the listed building at that time. As readers will have seen from the various notes on 'curtilage' in this blog, it cannot automatically be assumed that the whole of the former garden of the listed building was in fact within its curtilage. This will depend on the precise manner in which the land that now forms the separate property or properties was used at the time of the original listing of the neighbouring dwelling and its functional relationship with that dwelling at that time.

If the land now occupied by the new house or houses was within the curtilage of the listed building at the time of its original listing, then the listing extends to any object or structure within that original curtilage which had formed part of the land since before July 1, 1948. Listed building consent would be required for the demolition or alteration of any such object or structure (if that alteration would affect the character of the neighbouring dwelling as a listed building). However, the listing would not extend to any building, structure or other object on the land that was not there before July 1, 1948.

There is, however, some confusion as to the effect of land now separated from the listed building having been within the curtilage of that listed building at the time of listing, when one comes to consider the exercise of Permitted Development rights. For the reasons I have explained, in England at least, permitted development rights under Part 1, Classes A and B would not be precluded in respect of the new property or properties, even if they are still regarded as being within the curtilage of the listed building.

However, as noted above, development is not permitted by Class E if the building, enclosure, pool or container would be situated within the curtilage of a listed building. It is very much open to argument as to whether this prohibition applies only to the (reduced) curtilage of the listed building as it exists at the time when the permitted development is carried out, or whether it applies to the whole of the curtilage of the listed building at the time of its original listing. The latter would, in my view, throw up some obvious anomalies, but it would require some careful investigation and cogitation before one could be confident of coming up with an answer. It looks very much like a piece of litigation waiting to happen!

There is just one final point I should mention. Before getting stuck in to a detailed consideration of the provisions of the GPDO, it should not be forgotten that in these sort of cases there is quite often a condition attached to the planning permission for the erection of the new property or properties which will have removed permitted development rights under Part 1 in any event. If such a condition was imposed, the precise effect of the GPDO is entirely academic. Such conditions are not always justified and can sometimes be removed upon application to the local planning authority (or on appeal, if necessary, in the event of refusal – having regard to Circular 11/95). It is at that point that you would then have to consider whether the ‘curtilage’ issue might still prevent permitted development.


Friday, 12 April 2013

Invalid Planning Agreements – the limits of Section 106

Planning lawyers and town planners have received a shock with the judgment of the High Court in Westminster City Council v. SSCLG [2013] EWHC 690 (Admin) in which judgment was given by Belinda Bucknall QC on 27 March 2013.

I was going to write a piece on this judgment, but my colleague David Brock has beaten me to it, and so I recommend that you take a look at David’s post (which can be accessed by clicking on the direct link on the left-hand side of this page).

As David points out, this was a salutary case, and he has some pertinent observations to make on the issues that this case raises. It is a pity that De-CLoG takes so little notice of what they are told by planning professionals, and especially by planning lawyers with hands-on experience of the problems thrown up by planning legislation. We know what we are talking about, which most politicians certainly don’t, and the politicians are frankly ill-served by their civil servants.


Monday, 1 April 2013

Comments update

Due to the large number of spam comments being received recently, it has been necessary to introduce word verification on the Comments facility. None of these spam comments actually reached the blog itself, as all comments are subject to moderation, but the incoming rubbish was becoming a nuisance.

Genuine commentators should find the comments verification system easy to use, and I hope it won’t deter bona fide comments. It is primarily aimed at spam comments generated by ‘bots’, and I hope it may also deter ‘nuisance’ comments from others.


Community Infrastructure Levy – the approaching nightmare

We had an in-house seminar last month between our planning law team and our colleagues in the property law team on CIL and other issues that are of current concern (including assets of community value) and it is clear that people are only now beginning to wake up to the implications of CIL. My colleague David Brock presented an extremely enlightening paper on this topic, but rather than stealing his thunder I will leave it to him to comment on these issues on his own blog.

However, quite incidentally, I received only a few days later some thoughts on this same subject from a good friend of mine in the planning profession, with the suggestion that I might like to publish them here. So, with due acknowledgement, I am happy to do so.

First, there are just a couple of preliminary points I ought to explain. It is reckoned that only about 70% of local planning authorities in England will actually adopt CIL. Some have already done so, but the ‘deadline’ that the majority have chosen to work to is April 2014. In Wales (where my correspondent mainly practises), I understand that 6 April 2014 is the standard date set for CIL to come into effect.

My correspondent writes:

As we move closer to the CIL regs taking effect (6 April 2014 – only just over a year away now as I write), their implications on the overall planning contributions payable on a particular scheme come more sharply into focus, particularly as I happen to be working on a proposal, the contributions in respect of which, will be dramatically altered post-CIL. In order to simplify the explanation, it is probably best if I provide an example. In doing so, I will focus entirely on housing contributions in order to simplify matters.

Current Situation

Take a local planning authority with an up-to-date development plan (in the context of legislative requirements, rather than economic realities) and SPG covering s.106 contributions. The administrative area spans affluent commuter suburbs through to deprived towns. SPG seeks contributions to a variety of infrastructure projects, with the most financially significant being transport and education. It recognises the economic disparity across the borough and discounts the contribution in the identified deprived areas by up to 50%.

Post-CIL Requirement

The local planning authority has published its Preliminary Draft Charging Schedule, in which, with the support of a report by the District Valuer, it reduces the CIL contribution to “Zero” in the economically deprived areas. This is an outcome that I would not criticise, as it recognises an economic reality.

The Proposal

The scheme, which will incorporate approximately 300 new residential units, will, if determined prior to the effective date, attract a combined highways and education contribution that is likely to be in excess of £500,000, whereas, post that date, the contribution will be zero, providing the CIL Charging Schedule remains as currently proposed.


On the face of it, uncertainty over the final version of the CIL Charging Schedule means that it could be a risky strategy to delay submission of the planning application until its determination would take place post the adoption of the CIL. However, I can think of a number of ‘ploys’ that would negate the risk. For example, negotiate the s.106 later this year and then just don’t sign it until a clear picture emerges regarding CIL charging. If you’re going to be worse off by delaying, then sign. If you’re going to better off under CIL, then delay and renegotiate the s.106.

Reg 123(3) is quite specific, in that determinations made on or after the effective date cannot take account of pooled planning obligation contributions where 5 or more contributing obligations have already been entered into which provide for the funding or provision of that project, or type of infrastructure [Reg 123(3)(b)(ii)]. When counting the number of such obligations, it is from the date that the Regs came into force: 6th April 2010. In my estimation, it is highly unlikely that any local planning authority will not have entered into at least 5 obligations in respect of highways and education during that period.

Some may argue that such a strategy is not required, for if the economic situation in the deprived area is so bad that it is reasonable to set the CIL contribution at zero, then make a viability case and have the contribution reduced accordingly. However, Boy George in his budget announced a “Help to Buy” scheme, the first element of which commences on the 1st April 2013 and, it is estimated, will support 74,000 new home buyers. While the second element, starting in January 2014, is estimated to support £130 billion of high loan-to-value mortgages. The outcome of this is that most of the house price pundits, including the RICS, are predicting at least the possibility of another housing price bubble. In that context, what weight can you really expect to be afforded to your valuers’ carefully constructed historic comparables?

In addition, and we’ve all been here (or why introduce CIL in the first place?), even if you try negotiating with the local planning authority in respect of a reduced contribution, what guarantee do you have that they will respond meaningfully prior to the submission of a planning application? And even if they do respond, it doesn’t mean that they, or one of the funding recipients, won’t change their minds later.

From a landowner’s or developer’s perspective, the decision is easy; delay submitting the planning application for 6 to 9 months and avoid the consultants’ fees while, in the instance outlined above, saving approaching £100,000 a month. Even planning lawyers have months when they don’t earn that much!

The real irony of this situation is that the circumstances in which such a delay is going to prove financially beneficial are only likely to apply in deprived areas where an up-to-date CIL Charging Schedule is expected significantly to reduce planning contributions. Yes, the very localities that would undoubtedly benefit most from the economic uplift that the construction industry provides!


Is an emerging CIL Charging Schedule a material planning consideration? It is most certainly an ‘elephant in the room’, but can it be used as a simple expedient to reduce or remove the planning contribution towards infrastructure costs? To my mind it is, and should be. For, in reality, only the foolish or poorly advised will, in the circumstances outlined above, seek to obtain a planning permission prior to the effective date. The outcome of which will be that those areas that would benefit most from the economic stimulus occasioned by the construction industry, will have that stimulus delayed - possibly for far longer than 6 to 9 months due to the focus of the major house builders being on ready-to-go sites in affluent areas where turnover is greater and any increase in house prices is likely to be more readily apparent. Such implications are undeniably material to town planning and therefore, I would argue, a material planning consideration.

The difficulty is, will the local planning authority concur? Possibly not, and by the time you’ve argued your case before an Inspector, the opportunity has been lost and your client has run up a further bill in the process.

So, we have a dilemma with no obvious solution. That is unless government recognises the situation and publishes guidance to the effect that emerging CIL Charging Schedules are a material planning consideration that are to be taken into account when agreeing s.106 infrastructure contributions. It should also be made clear that failure by the local planning authority to do so would constitute unreasonable behaviour, thereby raising the spectre of costs being awarded on appeal. However, if it is going to have any beneficial impact, such guidance needs to be published in the very near future.

Unfortunately, for practitioners in Wales, while CIL is not a devolved matter, appeal costs are. As a result they are stuck in the last century with what was, in England, Circular 8/93. Therefore, ‘the spectre of costs being awarded on appeal’ is more reminiscent of a toothless grin when directed at a Welsh local planning authority!

This is only one of the nightmare scenarios that are going to face developers and their professional advisers with the advent of CIL. The particular situation postulated by my correspondent is more likely to arise in Wales than elsewhere, as my impression is that most English authorities are seeking to maximise CIL so far as practicable, and Nil rates are likely to be a rarity. The danger in England is that if planning applications are delayed, the resulting developments may be caught by CIL, whereas the early grant of planning permission could enable it to be avoided (except in those areas where it has already been or is about to be adopted).

As regards financial contributions under existing policies, secured by section 106 agreements, where local policies call for financial contributions from developers, these policies appear in most cases to be predicated on the existence of an identified need to provide for community, education and/or health facilities in association with new development proposals. It is only where replacement, additional or enhanced facilities are genuinely required that the developer can be expected to make provision for such facilities related in scale and kind to the need generated by the development.

In considering this issue, the statutory tests for the use of planning obligations laid down by Regulation 122(2) of the Community Infrastructure Levy Regulations 2010 must be applied. This provides that a planning obligation may only constitute a reason for granting planning permission for the development if the obligation is -

(a) necessary to make the development acceptable in planning terms;
(b) directly related to the development; and
(c) fairly and reasonably related in scale and kind to the development.

If a planning obligation does not meet all three of these tests, it cannot in law be taken into account in granting planning permission. There is therefore a legal requirement to demonstrate that the terms of the obligation are lawful.

There is clear evidence that the Planning Inspectorate and the Secretary of State are interpreting this requirement strictly, so as to ensure that the statutory tests are met. For the LPA to take account of a proposed section 106 agreement in granting a permission, it needs to be convinced that without the obligation permission should be refused. It is not sufficient to rely on a generic policy or on adopted supplementary planning guidance. This is particularly relevant where there is an authority-wide tariff scheme. The LPA must be able to provide evidence of the specific impact of the particular development, the proposals in place to mitigate that impact and the mechanisms for implementation. This has been the position since the CIL regulations came into force in April 2010 and applies irrespective of whether an authority has adopted or intends to adopt CIL.

In order to illustrate this point, if an authority has a section 106-based tariff system in place to require payments for school places from residential development, then to receive monies under the tariff for a specific planning application, it should be able to demonstrate that there is a deficit of school places within the local catchment area which make the application unacceptable in planning terms and that the Education Authority has measures in place to remedy that deficit, to be funded in whole or in part from section 106 contributions.

If this is not the case and the reality is that contributions are being sought as a fund to support school places generally across the LPA area, there is the risk that a decision to grant permission could be taken unlawfully, as the contribution should not have been taken into account.

There are ministerial appeal decisions that clearly illustrate this approach. For example, Mersea Homes CBRE, Land at Westerfield Rd, where the Secretary of State gave no weight to a number of financial contributions, for education, playing fields and a country park on the grounds that they did not meet the statutory tests. The site was considered already to make a good contribution to open space, the country park was not directly related to the development and there was sufficient capacity within existing schools. The contributions were not fair and reasonable. And, to take another example, Doepark Ltd, American Wharf Southampton, where the Secretary of State gave no weight to financial contributions for public open space, play space, sports pitches and transport infrastructure on the basis that there was insufficient information to decide whether they met the tests of being necessary to make the development acceptable in planning terms, directly related to the development and reasonable in scale and kind.

So, in the absence of any evidence of a specific identified need to provide for community, education and/or health facilities in association with a particular development proposal, and any evidence that replacement, additional or enhanced facilities are genuinely required within that particular area, it would appear that a planning obligation to secure such financial contributions would be unlawful when tested against the criteria laid down in Regulation 122(2) of the CIL Regulations, if it cannot be demonstrated that this is necessary to make the development acceptable in planning terms, is directly related to the development and is fairly and reasonably related in scale and kind to the development.

I understand that advice to this effect has been issued by the Planning Officers’ Society.

Reverting to CIL itself, when this comes into full effect the actual calculation and collection of the tax (because that is what it is – a development tax) is going to be an absolute nightmare. I strongly believe that it will become such a shambles and will cause such an outcry that CIL will be dropped within a few years, but we shall have to cope with it as best we can in the meantime (like each of the other failed attempts to tax development in the past).

To take one small example, very few people seem to be aware that CIL will be payable on house extensions and outbuildings erected as Permitted Development, unless the tax payable would come to less than £50. I bet that will come as a bombshell to householders!

As I indicated earlier, CIL is not really my subject, and I would much prefer to leave it to David Brock to try to explain it, as he did so succinctly and alarmingly at our seminar last month. Bearing in mind the timing, I reckon that CIL is going to become a real albatross around the neck of the coalition government in the run-up to the 2015 General Election, together with the ‘bedroom tax’ on housing benefit claimants and various other bright ideas the government has had, which will all be showing their true practical effects by that time.