Friday, 29 August 2014

“A Forward Looking Planning Manifesto”

It seems that the need for proper reform of the planning system, as distinct from the pointless political tinkering that we have encountered over the past 20 years or so, is becoming ever more widely recognised. London solicitors Addleshaw Goddard are the latest to add their voice to calls for a more fundamental approach to reform of the planning system.

Their recently published document – “A Forward Looking Planning Manifesto” is very much along the lines of what I and an increasing number of other planning professionals have been calling for – including an overall strategic plan at a national level (much more precise, and perhaps prescriptive, than the vague platitudes in the NPPF), as well as the need for strategic planning at the regional level (so wantonly abandoned by the present government) and a proper review of Green Belts. The need for proper strategic planning, which would include the setting of regional housing targets, is particularly urgent in view of the continuing failure of neighbouring planning authorities to co-operate meaningfully in developing their core strategies, particularly in relation to housing provision. As the authors say, this is necessary in order to counter "local political point scoring, skills deficits and NIMBY-ism".

However, a few of the ideas are, I suspect, too radical for any political party to countenance. For example, I find it hard to believe that the proposal to amalgamate the London Boroughs into just five massive super-boroughs will commend itself to the politicians. A similar proposal to create "metro-regional bodies" (enlarged regional or sub-regional authorities) may also prove controversial.

Addleshaw Goddard say that this manifesto has been informed by the views of "dozens of leading figures and industry experts, public sector figures and developers" which include not only private sector planning consultants but also planners in local government, as well as people in the development industry. This is further confirmation of the increasingly widespread view of those who actually have day- to-day dealings with the planning system that it cannot be allowed to stagger on in its present arthritic (or sclerotic) form. It seems that it is an idea whose time has come, and this will be a challenge for the incoming government in May 2015. It is timely that the political parties should be made aware of this now, so that they can take it on board in formulating their own manifestos for the next General Election.


Thursday, 21 August 2014

The planning system – the need for a real overhaul

The government’s current consultation on further changes to the planning system, coming on top of all the other changes made by this government and their predecessors, has prompted a number of people (including me) to call for a more fundamental review of the whole planning system, so as to sort out the dreadful mess that the politicians have made of the planning system.

The latest contribution to the discussion has come for Leonora Rozee, one of the most highly respected members of the planning profession who, before her retirement, was effectively the Chief Planning Inspector (although without the formal title which her role should by rights have had). Writing on the RTPI’s discussion forum on Linked-in this week, she said:

We are rapidly reaching the stage where no-one will actually have any idea of what our English planning system is any more. (Have we already reached it?). The only sensible solution is a wholesale review from top to bottom of why we need a planning system and what it needs to comprise, with the result set out in a single Act supported by such regulations, policy and guidance as are necessary to enable all to understand it. We now have a complete mess as successive governments have fiddled and changed what is there without thinking through exactly what it is they are trying to achieve - other than the much expressed desire for a simpler system with increased community involvement! If this Government want to get rid of it completely, then be honest and do so - not death by a thousand statutes, regulations, policies and guides.

I absolutely and whole-heartedly agree with those sentiments. I have often said that we need to take a sheet of plain paper and start again. On reflection, though, I don’t think we need entirely to re-invent the wheel. Lewis Silkin’s 1947 Act (shorn of its attempt to nationalise the development value in land) was a fine piece of work, the basic structure of which is still at the core of our planning legislation. It is all the detritus that the legislation has acquired in the subsequent 65+ years (and particularly in the past 20+ years, since the legislation was last consolidated in 1990) that is the problem. I tend to think of it like a ship that has gradually picked up numerous barnacles and other marine growth, so that now it can barely make headway through the water. The hull is still sound, but the ship badly needs its bottom scraped to remove all the accumulated muck and rubbish.

At the same time, there is a case to be made for codifying the leading judicial authorities on planning issues which have come to be recognised as an important component of our planning law. Just to take one example, the concept of the “planning unit”, which was definitively established by the judgment in Burdle ought to be written into the new Act. I was also going to suggest that the concept of “curtilage” should also be defined by the legislation. The formulation proposed in Sinclair-Lockhart’s Trustees would be the basis of this definition, as refined by Skerritts of Nottingham and by Sumption. However, we should perhaps remove the concept of “curtilage” from the legislation altogether, and substitute the planning unit as the area of land to be referred to in what is currently section 55 of the 1990 Act, and in Part 1 of the Second Schedule to the GPDO, as well as various other places in the planning legislation (both primary and subordinate) where the word “curtilage” is currently used.

There are numerous other examples of judicial authorities that ought to be written into the legislation, and I know from correspondence I have had with Dr Charles Mynors that he, and others, are very much in agreement on this point. Just such an exercise was carried out over a century ago, leading to the Sale of Goods Act 1893. We should certainly be capable of carrying out a similar exercise in relation to planning law in the early 21st century.

The problem, I fear, is that politicians simply do not see such an exercise as a vote-winner. They are only interested in gesture politics, ‘quick fixes’ that can be spun as dynamic action in a press release (so that the electorate can, they hope, be made to believe that ministers are ‘doing something’) but which achieve nothing in reality, beyond further complicating an already over-complicated planning system.

Nonetheless, I live in hope. If enough people tell the politicians that this is the real problem, and that the politician who really tackles it will go down in history as one of the great reformers (as Lewis Silkin did), then maybe they will finally grasp the point and tackle it.


Thursday, 14 August 2014

Proposed changes to the processing of planning applications

In this third post on the government’s recent consultation paper (“Technical Consultation on Planning”), I propose to take a look at what they are suggesting by way of further changes to the planning application process.

I wrote in May (“Validation nonsense continues”) that 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 in that earlier post are made - nothing less will do. Well, I am sorry to say that this latest set of proposals does nothing to address the issues which have caused concern to so many planning practitioners in recent years.

Parts A and B are narrowly focused on the involvement of statutory consultees in the process, including a specific proposal to notify railway infrastructure managers of planning applications for development near railways. This is followed by a brief and superficial suggestion, in Part C, that there might be a consolidation of the Town and Country Planning (Development Management Procedure) Order 2010 and a vague reference to the means by which the time taken in the various stages of the planning process could be separately measured, rather than the present measurement of the total time from making an application to its determination. This entirely misses the point. What matters is not the accurate measurement of the time taken in going through all the bureaucratic nonsense (which has greatly increased within the past 20 years) but urgent action to cut out all the unnecessary faffing about. Rather than being measured in greater detail, the process needs to be streamlined, which the government has signally failed to do, despite their claims to the contrary.

There are various different stages that can be identified in the application process. These include :

Pre-application consultation with the LPA
Community involvement
Submission of the application and supporting material
Validation (including requests for further information)
LPA’s consultation with neighbours and statutory consultees
Officer-level consideration of the application
Drafting of officers’ report to committee (or delegated report)
(including drafting conditions or reasons for refusal)
Determination of application by committee (or by designated officer under delegated powers)
Negotiation and execution of section 106 agreement (if required)
Issue of the planning permission
Submission of sample materials and/or further details required by conditions
Approval of materials and/or other details
Discharge of pre-commencement conditions
(Building Regulations consent - separate process)
Commencement of development

This is not intended to be definitive list, and readers can no doubt identify other steps in the process, but the essential message is that all these stages involve developers in significant time and costs, and there is considerable scope for cutting out a number of stages and streamlining this process.

Many developers have discovered to their cost that pre-application discussions are a waste of time and effort in far too many cases. It is often difficult or impossible to get planning officers to engage meaningfully with a proposal at the pre-application stage, and in any event no reliance can be placed on any views expressed by the officers at that stage, as it is all too likely that other (possibly more senior) officers may take an entirely different view when an application is actually submitted. The fees that are demanded by LPAs for a pre-application discussion do not represent value for money in many cases.

The requirement on the part of many LPAs that there should have been some community involvement in the formulation of the application involves an equally useless waste of time and effort. The response one gets to letters sent out in the neighbourhood (even where they contain plentiful information and illustrative details) and the response to exhibitions and meetings to explain the proposals is often minimal to non-existent, and the one or two responses that are forthcoming tend to raise points of minor detail or issues that are totally irrelevant to the application. The whole exercise is a useless waste of time not only for the developer but also for the local community. Neighbour consultations by the LPA after they have received an application are more than sufficient to ensure that local residents are aware of the application and that they have the opportunity to comment on it.

I have previously written about the information that must accompany a planning application. I won’t repeat myself, other than to state that the current rules are far too prescriptive. A very experienced planning consultant who, like me, has worked both in local government and in the private sector, agreed with me some time ago that the most effective improvement that could be made to the rules and requirements governing the submission of planning applications would be simply to repeal all the additional requirements that have been imposed in past 20+ years.

‘Major development’ should be identified as 50+ residential units or more than 2,500 sq m of gross retail floorspace. Industrial development should only be considered as ‘major’ if it falls into Class B2 and is within 400 metres of any residential property. All other development should be entirely exempt from the need for a Design & Access Statement. There should be a searching review (at ministerial level) of the justification for ecological reports, archaeological reports, Environmental Impact Assessments, noise impact assessments, flood risk assessments, heritage statements, land contamination assessments, lighting assessments, photographs or photomontages, sustainable construction statements or checklists, etc, etc, etc. In light of that review, strict (and restrictive) criteria should be laid down in the DMPO as to what information can legitimately be requested by an LPA in particular circumstances, so that only if such criteria do apply can the relevant type of information be required to accompany the planning application. This nationally uniform set of criteria in the DMPO would replace the local validation checklists individually adopted by LPAs, in contrast to the current position, where there are numerous demands for specific technical information and reports which are entirely inappropriate and unnecessary in many cases.

The whole concept of ‘validation’ should be entirely abandoned. It is of comparatively recent origin, and does not feature in the primary planning legislation. A planning application should be considered complete if an application form is submitted with payment of the application fee and is accompanied by such other documents as may be required by the nationally adopted criteria set out in the DMPO, referred to above.

The legal duty of the LPA (under section 69 of the 1990 Act) to enter the application on the planning register requires no separate ‘registration’ process. Time should run for all purposes from the day after the completed application documentation and fee are received by the LPA, and rules (again, written into the DMPO) should make it clear that the LPA is under an obligation to begin processing that application from that moment, irrespective of the date on which the purely administrative task of entering it on the planning register is completed. The essential point is that the application does not need to be registered in order to make it a valid application; registration is merely a matter of record keeping, which should not affect the processing of the application in any way.

There should be more clearly defined criteria that the LPA must follow in carrying out consultations. There should be a means (again, within the DMPO) of reliably identifying which neighbours and which statutory and internal consultees should be notified of the application, and which should not. There may perhaps be a case to made for prohibiting the consideration of representations made after the specified period (21 days) has expired, as well as a prohibition on entertaining representations made by other departments within the authority, if these are not departments having a legitimate interest relevant to planning in the subject-matter of the application. For all these purposes strict criteria should be written into the DMPO.

I have already explained my views on the use of conditions (which is dealt with elsewhere in the consultation paper). The problem for many years has been that, apart from the legal tests which have been established by the courts, the guidance has taken the form only of ministerial policy in circulars (most recently in 11/95 and now in the on-line Planning Practice Guidance). As a result, these requirements have been widely ignored by LPAs. The only reliable way to secure a uniform approach by LPAs to the use of conditions would be to write the well-established principles into the DMPO, so that they become mandatory rules which LPAs are bound by law to observe. The new rules might usefully restrict the circumstances in which approval of materials and other minor details can be required, and should also limit the circumstances in which pre-commencement conditions can be imposed.

Where conditions do require further approvals, the deemed discharge of the condition after a strict time limit following an application for such approval should apply, as the government has proposed, but it should be automatic and should not require the service of a further notice by the developer. The abolition of application fees for this type of approval would be a further incentive to LPAs not to impose such conditions unless they are really necessary.

Finally, it should be entirely unnecessary for conditions to be formally ‘discharged’. This is another comparatively recent innovation; I can certainly remember a time when conditions were simply complied with, and that was that. Some LPAs go to quite unnecessary trouble nowadays to formally determine applications for the discharge of conditions, even issuing a formal decision notice. Such bureaucratic nonsense was entirely unknown in my days in local government, and I can see no need for it.

The sad fact is that, despite their claims to be streamlining and improving the planning system, DeCLOG ministers have entirely failed to tackle these issues. The present consultation exercise probably represents their last opportunity before the General Election of achieving major reform of the planning system. They have botched it.


Friday, 8 August 2014

Proposed changes in the use of planning conditions

The government’s recent consultation paper (“Technical Consultation on Planning”) contains a number of ideas for modifying planning procedures. They include, among other things, proposals relating to the use of planning conditions.

It is widely recognised that there has long been a tendency on the part of LPAs to impose too many conditions on permissions, and to be far too prescriptive in their approach. The oft-repeated six tests of legality are often overlooked and ministerial advice, formerly set out in Circular 11/95 and now to be found in the government’s on-line planning practice guidance is widely ignored. Many planning officers have never even read 11/95 and are entirely unaware of what it said.

The consultation paper expresses particular concern about the number of conditions imposed on full planning permissions that require the submission of various additional details for approval, so that developers are required to jump through yet more hoops to get the development fully approved. Another cause for concern is the increasing use of pre-commencement conditions (‘conditions precedent’) forbidding the commencement of development until the condition has been formally discharged by the LPA. Many of these details, if they really do require to be ‘signed off’ by the LPA, do not really need to be approved before a start is made on site.

In practice, the courts have long since recognised that the commencement of development before pre-commencement conditions are discharged is entirely lawful, provided the condition is not one that “goes to the heart of the permission”. There are nonetheless far too many instances of LPAs claiming that the commencement of development is unlawful in these circumstances, with resulting uncertainty and anxiety for the developers.

Another issue is the time it takes to get such conditions discharged, once the further details have been submitted to the LPA. The government makes the point that this can lead to substantial and unacceptable delays and costs at a stage in the development process where applicants are often close to starting on site or where the development is underway. Such delays can have severe practical implications for applicants – potentially impacting on the availability of finance, the sequencing of development, or resulting in unnecessary and costly down time where work on site could otherwise be proceeding.

This is the background to the proposals (previously announced), which will be inserted in the Deregulation Bill, for the deemed discharge of such conditions where the LPA does not make a decision within 6 weeks. A deemed discharge will mean that where an developer has sought the authority’s consent, agreement or approval to a matter required by the condition, and the LPA has not notified the developer of the decision within 6 weeks, the applicant may regard that matter as having the approval or consent of the LPA.

The only reservation I have about this is the need to ensure that the new provision operates in a straightforward manner, and does not require the developer to jump through further hoops (such as some form of appeal process, even a streamlined one). I do not even see the need for the developer to give a further 2 weeks’ notice to the LPA to discharge the condition following the expiry of the decision period, as is currently proposed. The new rule will not apply to all such conditions, but the categories of excluded or exempted conditions, where deemed approval will not apply, must be kept to a bare minimum.

In tandem with this proposal, the Fees Regulations (which currently provide for a fee refund for confirmation of compliance with conditions after 12 weeks) will be amended to require a refund upon no decision being made within 8 weeks.

Having identified in the consultation paper the well-known problems with planning conditions referred to earlier, De-CLoG’s proposals for tightening up on the use of conditions generally are disappointingly tentative. There is a rather wishy-washy suggestion that LPAs should discuss draft conditions with applicants for major developments before a decision is made. However, whilst De-CLoG recognise that this could also be beneficial in the case of minor developments, they propose to make it mandatory only for major developments. It is suggested that this should happen not less than 10 working days (or even 5) before the determination of the application, but it really needs to be done earlier than this if the applicant is to be given any meaningful input into the formulation of the conditions.

This does not tackle the fundamental problem of inappropriate or unnecessary conditions being imposed on a permission by the LPA. The rules and guidance on the use of conditions need to be given real statutory teeth. Appealing a condition under section 78 is never a satisfactory solution (as it theoretically puts the entire planning permission in jeopardy). An application under section 73, followed by an appeal against the LPA’s refusal to remove or relax the offending condition is the only practical way forward, which adds extra expense and delay for the developer, although it is usually effective because the Planning Inspectorate takes a robust approach to unnecessary of unwarranted conditions. What is really needed, however, is an automatic disqualification of conditions which fail to meet clearly defined statutory criteria, so that they would be deemed void without need of any application or appeal, and would be automatically severed from the permission so as not to jeopardise the permission as a whole. This would involve some very careful legislative drafting, but it is not beyond the abilities of skilled planning lawyers to achieve.

De-CLoG does propose to tackle unwarranted pre-commencement conditions, to ensure that they are used only where there is a genuine and justifiable reason to prevent any development until the matter covered by the condition has been addressed. Many of the matters covered by pre-commencement conditions could be dealt with at a later stage in the development process, rather than before construction starts. The proposal is to add an extra requirement in the Development Management Procedure Order, requiring a written justification from the LPA as to why it is necessary for that particular matter to be dealt with before development starts. This requirement will be in addition to the general justification that local planning authorities are already required to provide for using conditions.

I very much doubt that this will prevent the inappropriate imposition of ‘conditions precedent’ in future. It would be all too easy for LPAs to adopt a standard form of words in such cases, referring to “the need to ensure good planning and to secure an acceptable form of development” or some such meaningless rubric. What is needed is a legislative provision that gives effect to the judgments in Whitley & Sons, Hart Aggregates and similar cases, so that a condition requiring compliance prior to the commencement of development does not in fact prevent the implementation of the permission before compliance, unless the condition “goes to the heart of the permission”. That is already the law; it is simply a question of codifying it, so as to eliminate any uncertainty in particular cases.

I will discuss the proposals for changes to the planning application process in a future post.


Tuesday, 5 August 2014

More planning changes in the pipeline

With only nine months to go to next year’s General Election, the government’s appetite for messing about with the planning system seems to be unabated. De-CLoG has recently published a miscellaneous rag-bag of quite far-reaching proposals for further changes to the planning system aimed (they say) at furthering their objective of streamlining planning.

The government is proposing to tinker with the procedures for neighbourhood plans. They propose to introduce a 10-week time limit for LPAs to respond to applications for a neighbourhood area to be designated (or for a community right-to-build proposal), as well as modifying pre-submission, consultation and publicity requirements for neighbourhood plans. The requirement for a six-week consultation period on a proposal for a neighbourhood plan would be removed, but affected landowners would have to be consulted. The changes will also address the need to comply with the Strategic Environmental Assessment Directive. The general aim is to speed up the Neighbourhood Plan-making process, and to reduce the ability of reluctant LPAs and opposing developers to disrupt or delay Neighbourhood Plans.

These proposals are most probably prompted by the limited take-up of neighbourhood plans so far, and the difficulties and delays that have been encountered by those who have embarked on the neighbourhood planning process. The government’s aim seems to be to beef up Neighbourhood Plans in an effort to demonstrate in their next election manifesto that they have put ‘localism’ into action, whereas these much-vaunted initiatives have proved up to now to be a rather damp squib, and are unlikely to counter the impression that the government effectively strangled localism at birth by imposing a requirement on LPAs to approve significantly more development in their areas, whether their councillors or voters like it or not.

This is the one area of change among those proposed in this consultation paper that would appear to require primary legislation. The government says that it intends to introduce new legislation to implement any changes at the earliest opportunity, subject to the parliamentary process. It may in practice prove difficult to introduce and pass such legislation in the time left in this parliament, in which case these ideas about neighbourhood plans could end up being no more than Tory manifesto commitments – a convenient fig-leaf to cover the nakedness of their originally much-trumpeted notions of Localism.

More changes to the General Permitted Development Order are proposed to enable further changes of use in addition to those previously introduced within the past two years. These will include the change of use of light industrial units (B1(c)), warehouses and storage units (B8) and some sui generis uses (launderettes, amusement arcades/centres, casinos and nightclubs) to residential use (C3), and changes of some sui generis uses to restaurants (C3) and leisure uses (D2).

In addition to these changes, the government is also considering making permanent those permitted development rights which currently expire in May 2016. This flies in the face of the growing opposition among some LPAs to office-to-residential conversions, so this proposal can be expected to cause quite an outcry.

First, the existing time limit for completing office-to-residential conversions that have obtained prior approval will be extended from 30 May 2016 to 30 May 2019. But a revised PD right for change of use from office to residential use is intended to be introduced from May 2016 (so it is entirely dependent on the rather doubtful prospect of the Tories securing a majority at the next General Election). It will replace the existing PD right, and the exemptions which apply to the current PD right will not be extended to apply to the new PD right. The amended Class J will still be subject to prior approval in relation to highways and transport, flooding and contamination risk, but in future (i.e. after May 2016) it will also be subject to a consideration of the potential impact of the significant loss of the most strategically important office accommodation (although this criterion will be tightly defined).

The right to build larger domestic extensions (under Part 1), currently expiring in May 2016, is also to be made permanent. A single storey rear extension or conservatory that extends beyond the rear wall by between four metres and eight metres for a detached house, and by between three metres and six metres for any other type of house, will be PD, subject to neighbour consultation for these larger householder extensions, which will continue to require prior approval by the LPA.

The right to make alterations to commercial premises has not so far been extended to shops, and so it is now proposed that the GPDO should be extended to allow retailers to alter their premises. PD rights are also proposed to facilitate commercial filming, the installation of larger solar panels on commercial buildings, minor alterations within waste management facilities and for sewerage undertakers, and further extensions (in addition to those already allowed) to houses and business premises.

There is also a proposal to limit the compensation payable where an Article 4 Direction is made to remove permitted development rights. (Any planning lawyer’s hackles will rises at that.)

It is also proposed to amend the Fees Regulations for prior approval applications. Where the permitted development is for change of use only, and a prior approval is required, a fee of £80 will apply. Where the permitted development is for change of use and allows for some physical development and prior approval is required a fee of £172 will apply, including change of use from sui generi to residential. Where a prior approval is required to carry out physical development it is intended to introduce a fee of £80, including for the erection of a structure in a retail car park or the installation of solar panels on a non-domestic building.

While mucking about with the GPDO, the government has decided that it is high time to consolidate this much-amended Order. But consolidation is no more than window-dressing; what the GPDO really needs is thorough re-drafting, to remove the numerous anomalies and ambiguities that have plagued us all for far too long.

Turning to the Use Classes Order, contrary to the general trend, but unsurprisingly, there is a proposal to restrict Class A2, so that betting offices and pay-day loan shops (both currently falling within this Use Class) would become sui generis uses. Planning permission will be required in future for a change of use to either of those uses.

Other changes include the possible merger of Use Classes A1 and A2 (perhaps with other ‘town centre’ uses), so as to create a much more flexible range of uses in our High Streets. [Somebody in De-CLoG seems to have been reading old posts in this blog again!] This will be accompanied by a further amendment of the GPDO to allow change of use to the widened retail (A1) class from betting shops and pay day loan shops (A2), restaurants and cafés (A3), drinking establishments (A4), and hot food takeaways (A5). The existing PD right to allow the change of use from A1 and A2 to a flexible use for a period of two years will remain, as will the right to allow for up to two flats above, and the change of use to residential (C3). On the other hand, the Government proposes to remove the existing PD rights applying to the A2 use class, so as to allow LPAs to control these developments.

With effect from 10 May 2006, any internal increase in floorspace of 200 square metres or more (including the introduction of mezzanine floors) in a building in non-food retail use has been included within the definition of development under section 55, and requires planning permission. As previously announced, the government intends to increase the limit to allow retailers to build a mezzanine floor (but they have not yet settled on a maximum floorspace limit).

This is only part of the current consultation paper. I shall have to leave for another time proposals for improving the use of planning conditions, proposed changes to the planning application process and the adjustment of EIA thresholds.

NOTE: Many of the changes to the law canvassed here have been implemented since this blog post was published. For completely up-to-date and fully comprehensive coverage of this subject, we would strongly recommend readers to obtain a copy of the author’s new book - “A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.