This popular and widely read blog acts as a Legal Commentary on issues affecting Town & Country Planning including recent changes in planning legislation and judicial rulings in planning cases, as well as some thoughts on other issues arising in the course of my work as a Planning Lawyer. It was originally intended mainly for fellow planning professionals, but all are welcome to read it. The views expressed are my own and nobody else’s.
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Thursday, 19 May 2016
Yet another Planning Bill in the Queen’s Speech
It seems that a Bill that makes further changes to planning legislation is now an annual event. This year it is to be a “Neighbourhood Planning and Infrastructure Bill”
The very brief mention of the Bill in the Queen’s Speech has been supplemented by a briefing note from the government that doesn’t really give us much more to go on, although there is enough there to show that the contents won’t be exactly what it says on the tin. They seem to be a fairly miscellaneous rag-bag of further planning changes, and yet more changes to CPO procedures.
The meaningless guff about the purpose and alleged benefits of the Bill is best ignored. The headline provisions of the Bill relate to further amendments to the Neighbourhood Planning process which, it is claimed, will further strengthen neighbourhood planning and give “even more power” to local people. [Excuse my cynical snigger as I type this.] The new legislation, they say, would also strengthen neighbourhood planning by making the local government duty to support groups more transparent and by improving the process for reviewing and updating plans.
A more interesting proposal concerns the imposition of conditions on planning permissions. The intention is to ensure that pre-commencement planning conditions are only imposed where they are absolutely necessary. The government recognises that excessive pre-commencement planning conditions can slow down or stop the construction of homes after they have been given planning permission. The Bill will tackle the over-use, and in some cases, misuse of certain planning conditions, with the aim of ensuring that development, including new housing, can get underway without unnecessary delay. This deserves at least one small ragged cheer. LPAs have ignored ministerial advice on the appropriateness of planning conditions for far too long. Legislation is certainly needed to enforce this discipline on the planners.
In this Bill the government will also embark on yet another attempt to make the compulsory purchase order process clearer, fairer and faster. This will include reform of the context within which compensation is negotiated – often a very significant and complex part of finalising a compulsory purchase deal. The proposals are intended to consolidate and clarify over 100 years of conflicting statute and case law. The government hopes to establish a clear, new statutory framework for agreeing compensation, based on the fundamental principle that compensation should be based on the market value of the land in the absence of the scheme underlying the compulsory purchase (a long-established principle that is well understood by professionals practising in this field).
The opportunity will also be taken in this Bill to establish the independent National Infrastructure Commission on a statutory basis. Chronic under-funding of public infrastructure by successive governments has been a national disgrace for a generation. Unfortunately, past performance, coupled with the present government’s insane insistence on hair-shirt austerity does not engender any confidence in their willingness or ability to deliver the public infrastructure the country really needs, despite the fine words with which they have trumpeted the provisions of this part of the Bill.
Finally, the government intends in this Bill to press ahead with their controversial and dangerous proposal to enable the privatisation of the Land Registry (which handles the official registration of all landholdings in this country, and the official records of all transactions affecting land and buildings, including people’s own homes). The risks to property owners and to people buying or selling their home will be huge if this proposal goes ahead. This is one proposal in the Bill which I hope will be seen off by a combination of expert opinion and back-bench opposition. The government has already been forced into a series of U-turns in response to increasingly assertive back-bench opinion, compounded by their comparatively modest working majority in the Commons, and it is to be hoped that this is one more daft idea that will bite the dust. Aux barricades, citoyens!
© MARTIN H GOODALL
Martin, could you please give us a couple of examples of "misuse of certain planning conditions" by LPAs?
ReplyDeleteI agree that Conditions are often imposed without being fully thought through. However, unless applications contain sufficient (acceptable) information at the point of application or there is an enforceable way of dealing with submission of schemes at defined points during development, I'm struggling to see what can usefully be done.
ReplyDeleteIn answer to Ian Stronge, the examples of inappropriate conditions I have come across are too numerous to list here, but one that is frequently encountered is the unjustified removal of PD rights. I have had to make section 73 applications on behalf of several clients to have this condition removed, and have then had to appeal the LPA’s refusal to do so, successfully and often with an order for payment of the appellant’s costs. There are limited circumstances in which such a condition is appropriate, but they are far outnumbered by the number of instances of this condition being unjustifiably imposed.
ReplyDeleteAssuming a development has been commenced (and/or completed), is there a time limit for making appeals under section 73 against the removal of permitted development rights?
ReplyDeleteI work at an LPA where the condition removing PD rights was included on over 200 decisions in the last 10 years and only successfully removed on fewer than 10 occasions - where sites are in the MGB, AONB or a CA then this shows the condition is justified.
ReplyDeleteIn answer to ‘Passer-by’, an application under section 73 can be made at any time. The time limit for appealing the refusal of such an application under section 78 is the usual 6 months from the date of the decision. For non-determination it is 6 months from the end of the eight-week period within which the section 73 application was supposed to be determined. (So the rules are the same as for ordinary planning applications.)
ReplyDeleteI think what ‘Passer-by’ may have in mind is the time limit for a compensation claim following refusal of planning permission for development that would have been permitted development but for the removal of PD rights. I haven’t got time at the moment to explain the compensation rules.
Thank you - no - while I would be interested to understand the compensation rules too, you have answered the question I asked.
ReplyDeleteOn Anonymous's point at 10:49, I wonder how many unsuccessful applications were made?
Any planning officers reading this, who still think they are going to get away with putting all sorts of unnecessary conditions on planning permissions in future, as they have done in the past, had better heed the words of Brandon Lewis in the Commons yesterday : “When sites that have gained permission are drowned with pre-commencement conditions, disillusion with the entire planning system sets in. Frankly, it is toxic. ......... This is not about taking away any protections or checks; it is about stopping needless bureaucracy and time-wasting. Our intention is that many issues will be resolvable at the same time that the building is under way, making sure that any legitimate concerns are addressed without holding up production of the houses that we need.”
ReplyDeleteIt would seem that the focus of Brandon Lewis's comments is pre-commencement conditions (which the PD condition referred to is not one).
ReplyDeleteI would say that removal of householder PD rights, for example, can be justified exceptionally, for example when the development would involve the change of use of a building which would be sensitive to change (former barn, mill etc). I'm surprised costs would come into it at appeal if the decision is based upon a judgement over potential impact (assuming that a specific reason is put forward by the LPA).
While I agree that applications are often submitted with lacking detail, that normally would not justify a pre-commencement condition unless the detail in question truly went to the heart of the scheme. Otherwise it should be easy enough to find an alternative trigger for requiring the submission / approval of details as Brandon Lewis puts it 'while the building is under way'.
I second the removal of PD rights as being unnecessary and unreasonable wherever the development may be. Of late the imposition of conditions seems to be getting out of hand, LPAs who continue as they are do so at their peril.
ReplyDeleteIf the information is insufficient ASK for it.
Just checked out the full Brandon Lewis H of C statement, and he says "I have had examples come to me of planning permissions with hundreds of conditions attached, the worst of which are those that stop any work happening at all until further details are agreed—so-called pre-commencement conditions. The worst I have heard of so far had over 800 of them."
ReplyDeleteIs this right, ie a permission with 800+ planning conditions! Anyone know where it is?
I deliberately omitted these words from my quote, as it did seem to me to be a bit ‘over the top’. One has to discount the hyperbole and exaggeration of politicians to some extent. They have an unfortunate tendency to overstate their case and thereby undermine it. There is an awful lot of it coming from both sides in the European referendum campaign. And politicians wonder why their credibility is so low nowadays!
ReplyDeleteThat said, those of us dealing with planning matters from the developer’s side have seen many examples of excessive conditions, both in the number of conditions imposed and in the subject matter, (though I have never seen in excess of 800 on one permission!).