Wednesday, 9 January 2019
Planning law reform - Wales shows the way.
As I have explained before, I have given up trying to keep up with the increasing divergence of Welsh planning law from the law in England, but an important project to reform planning law has been under way in Wales throughout the past year, conducted on behalf of the Law Commission by a team under the leadership of Dr Charles Mynors. The final report was published in November, and contains some extremely interesting proposals for planning reform in Wales. The report became available online last month [https://www.lawcom.gov.uk/document/planning-law-in-wales-final-report/], and hard copies have recently been distributed.
So why am I so interested in proposed changes to planning legislation which will apply only in Wales? The reason for my enthusiasm is that the issues with which the report deals are common to both Wales and England, and the need for reform is just as pressing on this side of the Severn. So the changes which the report proposes could equally well be introduced in England. The authoritative analysis of these issues in this report could well be a precedent for a similar exercise in England, which could lead (I hope) to a long overdue consolidation and codification of both our primary and secondary legislation relating to or affecting town and country planning in this country.
As the original consultation document pointed out, an extensive system of primary and secondary legislation has grown up, much altered by successive governments of differing political persuasions in response to new political pressures and priorities. This legislation is supplemented by a mass of policy guidance of various kinds, both national and local. As a result of this evolutionary process, the law that governs our planning system – contained in Acts, Regulations, Orders, Rules and directions – is now excessively complex. We currently have no fewer than 30 Acts of Parliament in England alone, all or part of which contain provisions relating to town and country planning, and around 150 pieces of secondary legislation that determine how the planning system operates in detail, as well as national and local policy documents.
The resulting mass of primary and secondary legislation has grown inexorably and to no particularly obvious pattern. Following the first comprehensive Town and Country Planning Act in 1947, the relevant law and Government policy could be contained, along with commentary, within a single loose-leaf volume (originally entitled the Encyclopaedia of Planning, Compulsory Purchase and Compensation). Seventy years later, the “planning” element of that work has now grown to ten volumes.
Many of these Acts and regulations have been the subject of judicial interpretation in the courts over the last 70 years. And the whole system has been the subject of numerous pieces of guidance, produced either by central government departments and other public bodies or by relevant professionals or others. The law is difficult enough to navigate for specialist professionals, who also have available online resources. For non-specialists, let alone members of the public, the law – albeit simple enough in principle – is now almost impenetrably complex in practice.
The body of judicial authorities is now formidable, and significant judgments badly need to be codified (i.e. taken on board in primary legislation). I have in mind, examples such as the concept of the planning unit, and the rule in Burdle; there are a good many others, such as a statutory definition of “curtilage”, and consistent definitions of “agriculture”, “agricultural land” and “agricultural unit”. As a law student, I recall studying the Sale of Goods Act 1893, which was the result of just such an exercise of codification. If it could be done in the 1890s, it can certainly be done in the 21st century!
One of the problems, even within the primary legislation, is that some provisions are in the four main 1990 Acts; others are in amendments to those Acts; others are in new provisions inserted into the Acts; yet others are in freestanding statutes outside the 1990 legislation altogether. So, for example, the duty to make planning decisions in accordance with the development plan – which is a fundamental principle of the system – is in section 38(6) of the Planning and Compulsory Purchase Act 2004, and not in the 1990 Act. Indeed, it is noteworthy that of the numerous duties laid upon planning authorities when determining planning applications, only two are in the 1990 Act itself.
I cannot summarise a 455-page report in a single blog post, or even in a series of posts, but it has prompted the following further thoughts. In Part III of the principal Act, there is a need to tidy up the three types of planning application that can now be made – for (1) permission in principle [PiP], (2) outline planning permission (followed by approval of reserved matters) and (3) full planning permission. I remain sceptical of the practical value of PiP, which was only introduced due to the over-complication of the rules relating to outline planning applications, which used to be much simpler than they are now. We need a simple and straightforward choice between making an uncomplicated application for outline PP (with some or all matters reserved) or making an application for full PP.
Also in Part III, there is a need to consolidate section 70(2) of the principal Act with section 38(6) of the 2004 Act. My own view is that section 70(2) should be sufficient by itself, and that the introduction in 1991 of what is now section 38(6) of the 2004 Act was entirely unnecessary, and has been a complicating factor that has impacted adversely on the plan-making system. (The process of formulating and adopting the Development Plan needs to be streamlined and simplified in any event.)
The provisions under which an LPA may decline to entertain a planning application (see sections 70A, 70B and 70C) are open to abuse by LPAs, and are unnecessary and unduly restrictive. The perceived problems that these provisions were designed to address were largely imaginary, and these three sections should be scrapped or closely regulated.
There is also a need for better regulation of the use of planning conditions when PP is granted. The new provisions governing pre-commencement conditions only partially address this issue, and are in any event somewhat deficient in resolving the problems posed by pre-commencement conditions. As noted in the Welsh report, there is also a need for clarifying how the approval of matters required by conditions should properly be dealt with. The scope and methodology for amending planning permissions, particularly under section 73 should be clarified.
As regards the lawfulness of development, the provisions governing applications for Lawful Development Certificates would sit better in Part III of the principal Act, rather than being subsumed within Part VII (enforcement). I also suggest that the legislation should be amended to make it clear that the lawfulness of development does not depend on the issue of an LDC (as already confirmed by judicial authority).
There are a good many other useful proposals for planning reform in the Welsh report, and I would very much hope that a similar exercise will be put in hand in England as soon as possible.
© MARTIN H GOODALL