Thursday, 22 May 2014

Comments and queries

In the past, I have published as many comments and queries as possible in this blog, and have attempted to answer most of the questions posed (although there are inevitably situations that are so dependent on their precise facts that is impossible to give any sensible reply on the basis of the inevitably brief summaries provide by correspondents). However, such are the pressures on my time now that it is no longer possible for me to respond to queries in this way.

In future, I am afraid I shall not be publishing detailed queries to which I am unable to respond. These will usually be those queries that pose a specific question about a particular set of facts. Please don’t be offended if queries of this nature fail to appear in future.

If a comment or query raises a point of general interest I may still publish it, with or without some form of response. Comments on particular blog posts that add to the discussion are always welcome, and will nearly always be published, as they have been in the past.

Similarly, I am afraid that I am no longer able to respond to emails requesting ‘a quick answer’ to specific queries. Keystone Law remains willing to accept instructions on substantive planning matters, for which our usual professional charges will apply, although pressure of work within our planning law team may sometimes prevent our accepting instructions, particularly at short notice, and my own commitments may make it necessary for me to refer new work to other colleagues within our team.

I hope this makes the position clear, and that it will avoid too much disappointment at the non-appearance of specific queries in the comments pages.


Thursday, 15 May 2014

Enforcement appeals – an important judgment

I remember my colleague Ben Garbett discussing the case of Ahmed v. SSCLG with me when judgment was given in the High Court last July. We agreed that this was an important decision, contrary to the view of one commentator at the time, who lightly dismissed the case as one which raised “a novel (albeit narrow) point of law”, although they did acknowledge that the case made it clear that enforcement action is intended to be remedial rather than punitive, and that obvious alternatives which would overcome planning objections at less cost and disruption to the developer should be considered.

I intended to blog on the case, but pressures on my time prevented this, and the case was in any event destined to go on to the Court of Appeal. The CA has now handed down a judgment - [2014] EWCA Civ 566 - which upholds the first instance decision, and so it really is high time that we looked at this case.

The situation that occurred is one which I have encountered on a number of occasions, and is not uncommon. To put it simply, planning permission is granted for a particular development (or the GPDO permits development within certain limits). The development is then built, but although it is not wholly at variance with the planning permission, it exceeds what was authorised or permitted. It is well-settled law that, if this is a material departure from the consented scheme (or the permitted development under the GPDO) then the entire development is unlawful, and the proper allegation in an enforcement notice is the erection of the development (in its entirety) without planning permission.

What is controversial (and I unsuccessfully took this point in the High Court more than 20 years ago, when we failed to persuade a deputy judge to grant leave under section 289) is the extent of the remedial action which should properly be required by the enforcement notice, which all too often requires the demolition and removal of the entire development. The point will inevitably be raised in an appeal against the enforcement notice under section 174, under either or both of Ground (f) and/or Ground (a). The argument is that the breach of planning control could be adequately remedied by requiring no more than is necessary to bring the development within the scope of the planning permission (or within the scope of the permitted development under the relevant part of the GPDO).

In Mr Ahmed’s case, planning permission had been granted on appeal for the erection of a three-storey building, which would have had a ‘butterfly’ roof, to provide six flats. The building as erected was not, however, in accordance with the approved plans: It had four storeys, providing space for a seventh flat and with a different roof arrangement. In addition, the rear and side elevations of the property as built did not correspond to those shown on the approved plans. The consequence of the departure from the approved plans was that the building was in breach of planning control (and also that its erection did not constitute lawful commencement of the development permitted by the planning permission, so that the permission had lapsed five years from the date on which it was issued – although I confess that I have some doubts as to the correctness of this last assertion).

The LPA refused retrospective planning permission for the development as built, and served an enforcement notice requiring the permanent and complete removal of the whole of the unauthorised building, the restoration of the relevant parts of the previous building to their position before the unauthorised development was carried out, and the removal of all waste, materials, equipment and debris.

In his appeal against the enforcement notice, Mr Ahmed relied on Ground (f) (namely that the steps required to be taken exceeded what was necessary to remedy any injury to amenity that may have been caused by the breach of planning control). He argued that the scheme that had originally been authorised by the planning permission would still have been acceptable in planning terms at the time the enforcement notice was issued.

He contended that in light of the fact that the approved scheme was achievable by modification of the development, the council’s requirement that the whole of the development be removed was unnecessary and punitive and amounted to over-enforcement, and that all that was required to make the development acceptable in planning terms was for it to be modified to comply with the design of the approved scheme. He asserted in conclusion that the steps required in the enforcement notice clearly exceeded the steps required to remedy any breach of amenity.

Under Ground (a) Mr Ahmed also argued that the development as built was acceptable in planning terms and that planning permission ought to be granted. Starting from the proposition that the scheme that had been authorised by planning permission was still acceptable in planning terms, he focused on the elements of the development that differed from the approved scheme. It is clear, therefore, that under this ground of his appeal Mr Ahmed was seeking approval for the development as built, rather than for the consented scheme, by reference to a comparison exercise between the two schemes.

The inspector dismissed the Ground (a) appeal in respect of the development as built. In relation to the Ground (f) appeal, he acknowledged that an alteration to the building which resulted in it complying with the application that was previously granted might be sufficient to remedy the injury to amenity, but he did not believe that the powers available to him under s.176(1) of the Act would allow him to take this step, as it would turn a notice which was intended to rectify a breach of planning control into something else. It would be for the council to consider a fresh application for this, or for an alternative scheme. The inspector seems to have been influenced by the fact that the former planning permission had by now lapsed, and so there was no longer any ‘fall-back’ position that could be implemented.

The inspector agreed with the LPA that the purpose of the notice was to rectify the breach of planning control, rather than to remedy the injury to amenity. In these circumstances, where there was no extant planning permission which could be implemented, the breach of control could only be rectified by the removal of the building as a whole and restoration of the relevant parts of the building to their position before the unauthorised development was carried out. He concluded that there were no lesser steps available to the appellant that would allow this to be achieved.

The question for the court was whether the inspector erred in law by failing to consider an “obvious alternative” in accordance with the principles discussed in Tapecrown Ltd v FSS [2006] EWCA Civ 1744, [2007] 2 P&CR 7 and Moore v SSCLG [2013] JPL 192. The “obvious alternative” relied on would have been the grant of planning permission for the scheme previously authorised, departure from which had resulted in the breach of planning control which was the subject of the enforcement notice.

At first instance, the deputy judge, held that Moore is clear authority for the proposition that where an appellant has advanced a properly articulated fall-back* submission under grounds (a) to (e) in section 174(2), it may also be considered under Ground (f). He could see no reason in logic or principle why the reverse should not also be true. In the present case the Appellant had made his fall-back* position clear under Ground (f). The Inspector concluded that the Appellant’s fall-back* position might have remedied the injury to amenity. The Inspector however concluded that it could not be an obvious alternative for the purpose of the present notice, which had been issued for the sole purpose of remedying the breach of planning control, because the prior consent had already lapsed by the time of his decision. [* The use of the term “fall-back position” here does not seem to have been intended to refer to what planners and planning lawyers usually mean by the term, but rather to an arguably available alternative, which is not quite the same thing.]

In the deputy judge’s view, the Inspector overlooked an obvious alternative that could have remedied the breach of planning control that was the object of the notice – namely the possibility of varying the notice, as requested by the appellant under Ground (f), and at the same time granting retrospective planning consent under section 177, which provides a power to grant consent in respect of part of the matters that were the subject of the enforcement notice (namely that part of the building which could remain standing in accordance with the prior consent, had it not lapsed).

The Appellant was, at the time, deemed also to have made a planning application under Ground (a). For the purposes of that application, and treating the Appellant’s submissions as a whole in accordance with the approach in Moore, it was in his lordship’s judgment incumbent on the Inspector at least to consider whether to exercise his power to vary the notice and grant consent in accordance with the proposal made under Ground (f). Having concluded that he lacked the power to vary the order under section 176 standing alone, recourse to section 177(1) and section 174(2)(a) was the obvious alternative course which could have overcome the planning difficulties, at less cost and disruption than total demolition. In failing to address his mind to this possibility, the Inspector had erred in law.

On appeal to the Court of Appeal, Richards LJ drew attention to the judgment of Carnwath LJ (as he then was) in Tapecrown, when he observed that the inspector has wide powers to decide whether there is any solution, short of a complete remedy of the breach, which is acceptable in planning terms and amenity terms. If there is, he should be prepared to modify the requirements of the notice and grant permission subject to conditions. However, it is not for the inspector to seek out solutions; it is up to the appellant to deal with this in their submissions in support of the appeal. Subject to this point, however, the inspector should bear in mind that the enforcement procedure is intended to be remedial rather than punitive. If on his consideration of the submissions and in the light of the site view, it appears to him that there is an obvious alternative which would overcome the planning difficulties, at less cost and disruption than total removal, he should feel free to consider it. In such circumstances fairness may require him to give notice to the parties to enable them to comment on it.

In giving judgment in Moore Sullivan LJ had said, applying Tapecrown, that the mere fact that in Moore this issue was raised under Ground (b) rather than Ground (f) was not fatal to this ground of appeal. If there was an ‘obvious alternative’ which would overcome the planning difficulties, at less cost and disruption than total cessation, the inspector should have considered it. (The court in Moore held on the particular facts of that case that there was no “obvious alternative” on the material before the inspector.)

On the basis of these authorities and, in particular, Moore, the Court of Appeal upheld the deputy judge’s finding that the inspector erred in law by overlooking an obvious alternative by way of granting planning permission for the previously consented scheme and varying the enforcement notice accordingly. It was clear that the inspector did not consider the possibility of that alternative.

The court did accept, however, that the power under section 177(1) to grant planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control is linked to an appeal under Ground (a), rather than under Ground (f). But Mr Ahmed’s appeal did include express reliance on Ground (a) and he would have been deemed in any event to have made an application for planning permission by virtue of section 177(5). Although his Ground (a) appeal sought planning permission only in respect of the development as built, which constituted the whole of the matters stated in the notice as constituting a breach of planning control, the power under section 177(1) was to grant planning permission “in relation to the whole or any part of those matters”.

In principle, therefore, planning permission could have been granted for the previously consented scheme if the differences between it and the development as built (i.e. the differences identified in the notice as “unauthorised additions, alterations and variations to the approved scheme”) were such that a development in accordance with the previously consented scheme could be regarded as a “part” of the development as built. This was a matter of planning judgment for the inspector. It was a judgment he did not make because of his failure to give any consideration to the possibility of granting planning permission for the previously consented scheme.

The court was not in a position to decide what conclusion the inspector would have reached if he had considered that possibility. In particular, they could not exclude the possibility that he might reasonably have concluded that the previously consented scheme was to be regarded as “part” of the development as built, on which basis he would have had power under section 177(1) to grant planning permission in relation to it.

The final question to be considered was whether the inspector erred in law in failing to consider the possibility. In the court’s judgment, he did fall into error, in the manner found by the deputy judge. The inspector’s reasoning under Ground (f) was to the effect that he did not have the power to produce a result whereby Mr Ahmed was required to fall back on the previously consented scheme rather than removing the building as a whole. But as explained above, that power potentially existed through the route of granting planning permission for the previously consented scheme under Ground (a). That was a route that the inspector failed to consider. Mr Ahmed had not raised it under Ground (a) but Mr Ahmed’s submissions under Ground (f), albeit put forward in terms of remedying the injury to amenity rather than remedying the breach of planning control, should have alerted the inspector to the possibility as an obvious alternative.

It would have been a matter for the inspector to assess whether the previously consented scheme would overcome the planning difficulties at less cost and disruption than total removal. He made no such assessment because he did not apply his mind to the question. Similarly, it would have been for the inspector to decide whether there had been any material change to the planning considerations that had led to the approval of the previously consented scheme on the conditions then imposed, though the enforcement notice itself did not suggest any such change but relied on the differences between that scheme and the development as built; and it would have been for the inspector to decide whether a variation of the enforcement notice consequent upon the grant of permission for the previously consented scheme would cause any “injustice” to the LPA within section 176(1), though none had been suggested. The fact that there would have been no fresh consultation on the previously consented scheme did not seem to Richards LJ to be a fatal objection in the circumstances.

There are some further points that were discussed in this case that might merit further discussion in the future, and it is clear, both from this judgment and from some of the earlier authorities cited in the course of this case, that there may be circumstances in which it may not be open to an inspector to reduce the requirements of an enforcement notice in the manner sought in this case. However, Ahmed is clear confirmation of the principle that where both Grounds (a) and (f) are relied upon by the appellant, and provided that submissions in support of the case for variation of the requirements of the notice, coupled with a request for appropriate permission under Ground (a) or under section 177, are put forward by the appellant, the inspector must give consideration to this possibility.


Tuesday, 13 May 2014

Earth-moving for garden landscaping

A topic that has vaguely troubled me for some years is the doubtful status in planning terms of engineering works carried out in a domestic garden in order to realise some of the more adventurous garden designs that are publicised on TV as well as in various magazines.

The General Permitted Development Order is of limited assistance here. Part 1, Class E permits the provision within the curtilage of (among other things) any building or enclosure, swimming or other pool, required for the enjoyment of the dwellinghouse as such. “Building” would include anything that amounts to a structure, so various built features could be included in the design, subject to the limitations and conditions set out in Class E. For example, raised decking (or any balcony or other raised platform) is ruled out if its height from natural ground level is greater than 300 millimetres. Class F also permits hard surfacing, and this is not limited as to its area (in contrast with Class E). [There are, of course, exclusions, limitations and conditions in Class E, which I have discussed in a previous blog post, and do not propose to repeat here.]

When addressing a meeting of SWENFORCE (South West enforcement officers) last week, I speculated that one might also rely on Part 2 in respect of fences, gates, walls and other means of enclosure, but an earth bund (which could in principle come within Part 2 if it performs the function of enclosure) would not be permitted development if it was wider than is really necessary to perform that function or if it does not in reality act as a means of enclosure. In some circumstances, it might be possible to argue that raised banking in the garden does in fact constitute a structure, and is therefore permitted development under Part 1, Class E, but the position remains uncertain.

What is certainly not covered by the GPDO is more extensive excavation, and other earth-moving, taking the form of engineering operations rather than building operations. And yet I can think of quite a few garden landscaping schemes, even involving fairly extensive earth-moving, which have produced an entirely acceptable garden landscape, and which have no appreciable impact in planning terms. It seems to me that there is a lacuna in this respect in the GPDO, and there should perhaps be an additional Class within Part 1 of the Second Schedule to cater for works of this type.

The enforcement officers to whom I was lecturing had not encountered this problem in the course of their work, and this certainly accords with my own impression that most local planning authorities turn a blind eye to what in theory might be unauthorised development in the garden, presumably because no-one ever complains about it. The problem is that if a jealous or resentful neighbour does complain, there may be one or two enforcement officers who will see it as their mission to charge into action over it.

I am only aware of one appeal decision that is in any way relevant to this topic. Enforcement action was taken by Greenwich LBC against works carried out in the rear garden of a house as part of a televised makeover of the garden (instigated and broadcast by the BBC no less!). However, this action appears to have been directed at the structures that had been built, including two cube structures and an area of decking, plus a structure made out of old telegraph poles. In practice, it seems that it was only the height of these that was a problem, and the inspector accepted that reducing them below 3 metres in height would be acceptable. The question of any earth-moving or other landscaping does not seems to have arisen in this case.

In practice, even if the earth-works do amount to engineering operations, it is very unlikely in most cases that it would be expedient, under section 172, to serve an enforcement notice, and I would hope that common sense would prevail. I can’t recall off-hand if the NPPG repeats earlier ministerial advice to the effect that enforcement action should not be taken simply in order to ‘regularise’ the position where planning permission has not been obtained for development, if the development is doing no real harm in planning terms, but this principle should apply in any event.

The proper and permanent solution, however, would be an amendment of Part 1 of the Second Schedule to GPDO to permit engineering works for the purpose of landscaping a domestic garden. No doubt it would be necessary to set certain parameters, but this would be better than the continuance of the uncertain and unsatisfactory situation that obtains at present.


Thursday, 8 May 2014

Common sense about the Green Belt

I get the impression that there is a gradual dawning of realisation, not only within certain think tanks but also among ministers and their advisers, that Green Belt policy has been allowed to get out of hand, and that far too much land has been designated as Green Belt, with the result that there is no longer sufficient land readily available near existing towns and cities to meet the urgent requirement for house-building where it is needed. The penalty is a chronic housing shortage and spiralling house prices, particularly in the South-east of England.

The original object of establishing the Green Belt was to discourage uncontrolled urban sprawl into the open countryside around our larger towns and cities and to prevent the coalescence of two or more large neighbouring towns. No-one would disagree with that broad objective; but two undesirable elements have crept into Green Belt policies over the years.

First, the Green Belts have been expanded to a far greater extent than was originally intended and to a far greater extent than is necessary to achieve their objective. For example, the Metropolitan Green Belt around London was intended to be about 12 to 15 miles deep. In some places it is now well over 30 miles deep. I recall, for instance, massive extensions to the Green Belt in Surrey in the 1980s for which there was no need and no objective justification. Our Green Belts now encompass huge areas of land that ought never to have been incorporated in them.

There needs to be a fundamental review of the extent of the Green Belt throughout the country, with a view to reducing substantially the extent of their designated area. This review should proceed on the presumption that extensions of Green Belts that have occurred within the past 35 years should be reversed unless there are very convincing reasons for those extensions, having regard to the primary objective of the Green Belts.

Local political pressures are so strong that it would be impracticable for this to be dealt with at a local level. This is an exercise that will have to be carried out on a national level by central government. Notions of localism are simply going to have to be suspended, if not abandoned altogether as totally unrealistic in face of the dire housing crisis facing the country. Local planning authorities should be required to revise Green Belt boundaries in accordance with the conclusions of this departmental review.

In future, there should be a very strong presumption against further extensions of existing Green Belts. There should, on the other hand, be regular reviews of both the inner and outer boundaries of Green Belts to examine the desirability of removing further land from the Green Belt if changed circumstances require this.

The second undesirable element that has crept into Green Belt policy is an entirely unnecessary and inappropriate rigidity in the treatment of development proposals, which seeks to resist all development in the Green Belt unless either it is deemed to be ‘appropriate’ development or exceptional circumstances can be demonstrated. This rigidity has been further compounded by the unfortunate wording of the relevant policy guidance in the NPPF, compared with the wording of the former PPG2. [See Europa Oil and Gas Limited v. SSCLG [2013] EWHC 2643 (Admin) and Fordent Holdings Ltd v SSCLG [2013] EWHC 2844 (Admin), referred to in this blog on Friday, 1 November 2013 – “Inappropriate Development in the Green Belt”.]

Rather than this increasingly inflexible approach, the advice in the NPPF should be amended to indicate that within Green Belts development should not be permitted which would prejudice the objectives of the Green Belt and/or which would compromise its openness, but that in determining applications for development in the Green Belt local planning authorities should examine the contribution that the application site in question makes to the Green Belt (in other words, its ‘Green Belt value’). It would thus be the impact of the development on the Green Belt as a whole that would be the determining factor, rather than the ‘appropriateness’ of the development in the Green Belt (in land use terms) or any question of exceptional circumstances being required to justify the development. The essential point is that Green Belts are not and never have been intended to create wholly development-free zones in the countryside.

There is one other issue that also needs to be addressed when considering Green Belt boundaries. Over the years a number of anomalies have been created by inept drawing of the Green Belt boundaries. There are quite a few examples, for instance, of the Green Belt boundary cutting across the middle of a residential curtilage. This makes no sense at all, and should be corrected. A related problem is the drawing of a thick line on small-scale maps, with the result that it is impossible to tell with any precision where the Green Belt boundary actually lies. This is an issue that can be addressed by local planning authorities right now, without having to wait for any change of ministerial policy. In their Delivery DPDs (or equivalent DPDs, following adoption of their Core Strategies), local planning authorities should take the opportunity of ironing out anomalies of this sort in the detailed Green Belt boundary at a local level. This is an issue that must be urgently addressed, and not merely in relation to recently fixed Green Belt boundaries, but also in respect of boundaries where these anomalies have existed for a good many years. Local councils really must grasp this nettle, or face the possibility of challenges by way of judicial review if they fail to address the point in their second stage DPDs.

Revision of the NPPF (and/or of the NPPG, as appropriate) should reiterate the principle that the Green Belt boundary should be established on a strong defensible line. This should be a clearly defined and reasonably permanent physical feature in the landscape, such as a river, road or railway. Drawing the boundary across the middle of fields or gardens is totally unsatisfactory, and even field boundaries may not be sufficiently permanent to form a reliable long-term boundary. At the very least, the Green Belt boundary should exclude existing residential development (except in settlements where the Green Belt ‘washes over’ the entire village) and this exclusion must extend to the whole of the residential curtilage. What is required is not a straight line but a clearly defined and readily defensible boundary, even if this may look untidy on a map.

The knee-jerk reaction, both locally from the NIMBYs and nationally from the usual suspects, such as the CPRE, whenever any reform or relaxation of Green Belt policy is suggested must be ignored. These people have become accustomed to regard the planning system as a useful tool for resisting change. But such protests should not deter either this government or its successors after the General Election next year from carrying through this necessary reform of Green Belt policy, so as to enable the essential expansion of housing development around our towns and cities.


Sunday, 4 May 2014

Validation nonsense continues

I had hoped (perhaps rather naively) that the legislative changes made by the 2013 Act and by the accompanying amendments to the Development Management Procedure Order would put an end to the nonsense that we had been experiencing in recent years from some (in fact quite a few) local planning authorities over the validation and registration of planning applications, but anecdotal evidence indicates that problems over the registration of planning applications are still widespread, and in some authorities worse than ever. It is an issue to which ministers need to give urgent attention if they are serious about reducing delays in the planning system and general frustration over its bureaucratic complexities.

The root cause of the problem is the target culture, for which both the present government and their predecessors must share the blame. This has bedevilled so many parts of the public sector, inducing a tick-box mentality, and giving public sector bodies (whether it be NHS trusts or local planning authorities) a significant incentive to ‘fudge’ the figures by, in the case of the NHS, not putting patients on a waiting list for weeks or months after they have been referred to a consultant by their GP or, in the case of LPAs, by using any and every excuse to delay or avoid ‘registering’ a planning application. Budget cuts and the resulting paucity of experienced planning staff has only compounded the problem.

It was the introduction of local validation checklists that gave LPAs a heaven-sent opportunity to find all sorts of flimsy excuses for failing or refusing to register a planning application. It is a rare case indeed where more than a handful of the types of information set out in these validation checklists is actually required, but the fact that an item appears on the LPA’s standard checklist can give rise to endless arguments over whether or not a specific item of information is really necessary in a particular case. It is infuriating to be faced with a refusal to register an application in such cases, and even more annoying if it happens more than a fortnight after the application was submitted.

Examples are too numerous to list, but include a demand for photo-montages of the street scene (whether or not the site is in a conservation area), petty arguments over scaling of plans, demands for ecological reports when the development quite clearly raises no ecological issues, and so on and so on. I appreciate that there is now a mechanism for challenging and, if necessary, appealing against unreasonable demands for information, but very few developers would want to waste further time and yet more expense by going down that route.

I am told that some authorities no longer accept cheques in payment of application fees (although I have not encountered this myself), which causes a further headache for developers and their agents.

Clearly the legislative changes made last year have made no difference to the behaviour of many LPAs, and some authorities seem blissfully unaware of them or of the change of culture that they were intended to encourage. Something much more drastic is required in order to put a stop to the continuing nonsense over the validation and registration of planning applications. The whole concept of the ‘validation’ and the ‘registration’ of an application as a distinct administrative process is only a quite recent innovation. Ministers should take urgent steps to do away with this part of the process altogether.

A planning application should be considered valid if an appropriate form (which should not require a signature), and a plan “sufficient to identify the application site” (but not necessarily drawn to any particular scale), plus drawings of the proposed development in the case of an application for full permission, is submitted to the LPA, accompanied by the tender of the appropriate fee, whether by cash, cheque or some form of electronic funds transfer. The form should be considered complete if it identifies the application site by reference to its ordinary postal address or some other description sufficient to enable it to be identified and specifies the development for which planning permission is sought (in words of the applicant’s choosing). Other information may be given on the form (such as proposed drainage arrangements, etc.), but should not be considered mandatory at that stage. Note the absence of any reference here to a Design & Access Statement – they are entirely unnecessary, and should be done away with altogether.

The LPA should be obliged to enter this application forthwith in the planning register, irrespective of whether or not sufficient information to enable the application to be determined has been submitted at this stage, and time for all purposes should be deemed to run from the date of receipt of the application, irrespective of the date on which it is entered in the planning register.

Before planning officers throw up their hands in horror at these suggestions, they should be aware that this was exactly how the system worked before we got bogged down in all the bureaucratic nonsense that has been foisted on developers and their agents in recent years. There was, of course, and should continue to be, a right for an LPA to request further information. An LPA had, and would continue to have, the right to refuse permission on the grounds that insufficient information had been provided to enable planning permission to be granted. Faced with a request for further information which a developer considers unreasonable, there should be an immediate right of appeal (as there used to be). This would take the form of a full appeal under section 78, so that the planning inspector, if there is sufficient information to do so (including any additional information produced in the course of the appeal), may grant planning permission, or may alternatively dismiss the appeal if, in the inspector’s judgement, the information provided by the appellant is insufficient to enable planning permission to be granted.

In the vast majority of cases, common sense would prevail on both sides, and developers would ensure that sufficient information is provided, either when submitting the application or subsequently, to enable the application to be properly considered. At the same time, LPAs would be less likely to make unreasonable demands for information. In contrast to the current situation, demanding extra information would be of no advantage to the LPA in ‘massaging’ its performance figures; in fact delays caused by unreasonable demands for information would have an adverse impact on their statistics.

Many of us who have to work with the planning system on behalf of developers will not take seriously the protestations of ministers that they are ‘reforming’ and streamlining the planning system, until the changes outlined above are made. Nothing less will do.