Replacing the Infrastructure Planning Commission

Some weeks ago, I wrote that one of the items near the top of the governments ‘IN’ tray must be an urgent decision as to what is to replace the Infrastructure Planning Commission, in light of their stated intention to abolish it. As expected, the government is to announce its closure later today and its merger with the Planning Inspectorate.

Early reports of this decision seem to be based on remarks made by the Chancellor, George Osborne, to a conference of local authority chief executives in London yesterday. It is expected that the actual announcement will be made by the Minister for ‘Decentralisation’, Greg Clark, at the RTPI’s summer bunfight in London later today.

What is proposed is the establishment of a ‘Major Infrastructure Planning Unit’ within the Planning Inspectorate. Inspectors will report to DCLG ministers, who will then make a ministerial decision in the same way as they would in respect of a called-in planning application. I recall suggesting at the time the IPC was set up (under the 2008 Act) that this would be a more sensible way of organising it.

We are promised that major infrastructure schemes will still be ‘fast-tracked’, and proposals will still be judged against National Policy Statements, although these will in future be subject to parliamentary approval (which could further slow an already tardy process). It is the continuing absence of National Policy Statements in certain important areas which is preventing some major infrastructure schemes from being brought forward. This is an issue to which DCLG needs to give urgent attention.

[A final thought: Did the IPC ever actually receive a formal application for development consent during its short life?]

© MARTIN H GOODALL

Decisions under the new regime

Three Secretary of State’s appeal decisions have recently been published reflecting his revised approach following the announcement of the forthcoming abolition of regional strategies. In all three appeals he states that he has taken into account as a material consideration his own letter of 27 May (which he quotes verbatim). In all three cases, he made it clear that although the Regional Strategy currently constitutes part of the development plan, he affords it less weight in determining these appeals than he would have done prior to the publication of his letter. However he did not consider it necessary to refer back to the parties on the implications of this change of weight before reaching his decision as in two of the cases – in West Yorkshire and in Thurrock - he would anyway have refused planning permission for these proposal on the grounds that very special circumstances had not been demonstrated to justify allowing the release of land from the Green Belt, so that the proposals were not in line with the development plan in that respect.

In a housing appeal for 299 dwellings at East Tilbury, the Secretary of State records that it was accepted by all parties at the Inquiry that, as a matter of fact and irrespective of allocations in the East of England Plan (EEP), there is less than a 5 year supply of housing land in Thurrock. However, the extent of the shortfall was a major issue of contention, which the Inspector explored thoroughly, concluding that there is a serious shortfall in the 5 year supply of housing land. The Secretary of State agreed with the Inspector’s reasoning and conclusions that this shortfall represents a failure to deliver a flexible and responsive supply of housing in relation to the housing targets required by the EEP. He considered that this was a material consideration in favour of the appeal proposals and that, notwithstanding the fact that the weight he affords to this matter is tempered by affording less weight to the housing figures set out in the EEP than formerly, it needed to be considered in the overall balance. The appeal was allowed.

In another housing appeal, for up to 199 dwellings in Leighton Linslade, the Secretary of State, in applying the same approach to regional strategy, made it clear that he would anyway have refused planning permission for this proposal (even had, for example, the EEP housing targets been afforded their former weight) on the grounds that very special circumstances had not been demonstrated and that the proposal is not in line with the development plan - his reasons for doing so being set out in his decision letter.

Referring specifically to housing supply, he agreed with the Inspector’s reasoning and conclusions on whether the proposal would assist in meeting national housing policy objectives, having regard to the supply of housing. He agreed that the proposed housing provision, including affordable housing provision, would contribute to housing targets in an area identified for housing growth where there is a shortfall and this is a material consideration in favour of the appeal proposals. However, the weight he afforded to this matter was tempered by the fact that he affords less weight to the housing figures set out in the EEP than formerly. However, even had the EEP housing targets been afforded their former weight he did not consider that the contribution this proposal would make to meeting those targets would be of sufficient weight to demonstrate very special circumstances, either alone or in conjunction with those other factors which weight in favour of the proposal.

So in all three cases, the reduced weight given to regional strategies did not in the end affect the outcome of these appeals. Perhaps we should not be altogether surprised by this. The targets set by regional plans may no longer be given the same weight as before, but the objective studies and statistics on which those targets were based cannot be ‘abolished’, and will clearly continue to carry some weight in themselves.

© MARTIN H GOODALL

The future of Development Plans

We were promised further details of the Government’s plans to scrap regional planning. This seems to have come in the form of an address by the Planning Minister, Bob Neill, to the National Planning Forum on 23 June.

What he actually said was typically full of political hyperbole and largely unenlightening as to the detail (due, no doubt, to a great deal of head-scratching still going on inside DCLG). Unsurprisingly, Neill reaffirmed the government’s determination to abolish Regional Spatial Strategies, although no date seems to have been given, and this will presumably have to await the passage through parliament of the promised ‘decentralisation’ Bill.

The only clue as to what is to be put in place of the current system were gnomic utterances about communities coming together to “take responsibility for solving their own local challenges in a way that make sense for them”. Local plans, Neill said, will be “more transparent and spell out how they will benefit the community. Communities will help develop proposals for their neighbourhoods, rather than be consulted on 'options' that have already been prepared.” He also said that local, long-term plans will become more important. “If a new development is in the plan that is supported by local people, a proposal in line with that plan will be approved unless there are significant reasons against it,” he added.

This is the first clue we have had that what is proposed goes beyond mere scrapping of regional planning, and will involve an overhaul of the whole Development Plan system. This was inevitable in view of the pivotal role that regional planning plays in the current system. The plan-making process we have at the moment can’t go on working if you remove the key element (the Regional Spatial Strategy, or its predecessor – Regional Planning Guidance) on which the rest of it depends. So it looks as though we are going to have yet another complete overhaul of the Development Plan system.

In some ways, the scrapping of the system set up under the 2004 Act will be welcome, as the byzantine complexity of the process has resulted in the various elements of the Development Plan emerging with glacial slowness. But whether the system that ministers intend to put in its place will be any better is open to question, especially if it is to be NIMBY-driven at the local level.

The Government's answer to this appears to be financial 'incentives' to LPAs and their voters to accept development in their areas which, left to their own devices, they would rather not have. This could act both as a carrot and a stick, as local authorities could possibly find themselves starved of grant funding from central government if they refuse to allow building at levels which would qualify for the proffered financial incentives. It sounds uncannily like the recently-scrapped housing and planning delivery grant.

© MARTIN H GOODALL

Interpretation of planning permissions

Those who have followed this blog in the past will be aware that the problem of construing the meaning of planning permissions has been before the courts on several occasions, most notably in the cases of Ashford and Barnett.

It was apparently established in Ashford that a planning permission must be construed solely by reference to the decision notice which actually grants permission, and that resort can only be had to the application and submitted drawings if they are expressly incorporated in the permission by clear words set out in the description of the development which the permission authorises, unless the words of the planning permission are ambiguous, in which case resort can then be had to extraneous material, and in particular to the application and submitted drawings.

This approach was refined in Barnett, which established that the approved drawings must be taken to be included in the permission, because in many cases the permission would be meaningless without the approved drawings. In practice, the approved drawings are usually listed in the permission so as to confirm which drawings the permission refers to.

Another case has now reached the High Court - Stevenage BC v. SSCLG [2010] EWHC 1289 (Admin) (in which judgment was given on 3 June) which raises further questions as to the interpretation of a planning permission. In this case, a planning permission which, according to its wording, was for external alterations to a retail unit was found by an Inspector in an LDC appeal also to grant permission for internal alterations to subdivide the retail unit. Normally, internal alterations do not require planning permission but, without going into the detail, the nature of the internal alterations in this case was such as to constitute development requiring planning permission.

Relying on Barnett, the Deputy Judge upheld the Inspector’s decision, and confirmed that because the application drawings clearly showed the internal alterations, they must be taken to have been included in the planning permission for alterations to the building granted in 2006.

The High Court has granted permission to appeal to the Court of Appeal in this case, because the principal point as to the primacy of the planning permission notice is an important one and in a context such as this has not been explicitly dealt with by the Court of Appeal [in Barnett].

So watch this space in a few months time for what will hopefully be a definitive decision from the Court of Appeal on the interpretation of planning permissions, particularly as regards the relationship between the wording of the notice and the approved drawings.

© MARTIN H GOODALL

Unitaries quashed

This is not planning law so much as local government law, but in the High Court today (21 June) Mr Justice Ouseley quashed the statutory orders creating unitary authorities at Norwich and Exeter. The ground on which the ministerial orders (made by the previous Secretary of State) were quashed was simple procedural unfairness. The S of S had set out clearly the grounds on which he would make such orders, then proceeded to make them on an entirely different basis, in circumstances in which (according to his previously stated criteria) those orders could not have been made.

The significance of this judgment is that it saves the government the trouble of proceeding with fresh primary legislation to undo the orders setting up the two unitary authorities. In his judgment, Ouseley suggests that the decision can be re-taken after a comparatively short further consultation period, but it is clear that the new S of S has no intention of doing any such thing. His re-taken decision, surely, will be not to proceed further with these unitary proposals.

With the previous proposals for unitaries already on hold in Suffolk and in the rest of Devon and Norfolk, Ouseley’s judgment would seem to have shot the fox, and saved some parliamentary time, unless there are some statutory loose ends that still need to be tied up in order to put the whole issue finally to bed. It might, for example, be felt necessary to drive a stake into Dracula’s heart (by passing a repeal Act) in order to avoid any possibility that disappointed local politicians in Norwich, Exeter and Ipswich might seek to raise the ‘undead’ again, by challenging a fresh ministerial decision not to create unitaries in those cities.

© MARTIN H GOODALL

Planning for ‘free’ schools

All the papers were full of the news at the end of last week that Michael Gove, the Schools Secretary, is going to “tear up planning laws” to allow his new ‘free’ schools to be built. This overlooks a small detail – Gove doesn’t have the power himself to change planning legislation.

DCLG have made no comment on this, so far. Presumably, the Education department will have to persuade Uncle Eric’s department to make the necessary changes to the GPDO. Or perhaps orders to do so will come from No.10 or the Cabinet Office.

There seems to have been an assumption that what this involves is simply a change of use of existing premises, rather than operational development, but that remains to be seen. One wonders how this will fit in with the government’s ideas of letting people at a local level decide what development they want in their neighbourhood. I can think of a number of objections on land use grounds which could arise in the case of particular school proposals. Presumably Article 4 Directions would still be available to LPAs to prevent undesirable changes of use or other permitted development for educational purposes in sensitive areas.

We shall have to wait and see what actually emerges. All we have had so far is government by press release. Putting Gove’s ideas into practice may prove to be more difficult than his bullish press statement was intended to suggest.

© MARTIN H GOODALL

HMOs – About turn!

Changes have been announced regarding the treatment of HMOs that will largely reverse the effect of the recent amendment to the UCO which came into effect on 6 April. This attempted to distinguish between dwellings occupied by groups of people (up to six) living together as a single household (which still come within Class C3) and dwellings occupied by between three and six unrelated individuals as their only or main residence, who share basic amenities such as a kitchen or bathroom (which now fall into a new Class C4). The ‘saving’ in Class C3 for dwellings occupied by groups of people (up to six) living together as a single household was intended to cover groups such as a small religious community, or a homeowner who is living with a lodger. The intention was to put student lets and similar house-shares into the HMO category (now Class C4), although there seems to me to be considerable scope for debate as to whether particular domestic arrangements put the use into Class C3 or C4.

The General Election distracted many people’s attention from the change, but the last government cannot really be accused of having ‘sneaked it though’, because it has been the practice in DCLG for some time past to put through tranches of such changes twice a year, to come into effect on 6 April and 6 October.

It subsequently seems to have dawned on DCLG that the effect of this change is that LPAs are liable to be snowed under with planning applications to authorise student lets and similar arrangements now falling into the HMO category, and there could potentially be a reduction in the number of premises available on the market if landlords were deterred by the red tape involved in applying for planning permission. Up to 8,500 applications a year were expected as a result of the change. This may well be what lay behind the announcement from the Housing Minister, Grant Shapps, yesterday (17 June) of a substantial relaxation of the new rules.

The changes to the UCO will remain in place, but the GPDO will be amended so that changes of use between Classes C3 and C4 will be permitted development. In those areas where LPAs feel that the concentration of HMOs is a problem, they can use their existing powers to make an Article 4 Direction. So, instead of a blanket requirement for planning permission for change of use to an HMO, this will be a requirement only in those areas where LPAs exclude this particular form of PD through an Article 4 Direction.

Until we have seen the exact wording of the proposed changes to the GPDO it will not be possible to assess the precise legal effect of this amendment. However, one possibility which occurs to me is that it might (perhaps unintentionally) make it much easier to create an HMO than it was, even before 6 April. Prior to that time, an HMO was sui generis, so that it would always have required express planning permission. I would need to look again at the definition of an HMO, as now refined by Class C4 in the UCO, to see whether the combined effect of these changes is as wide as I think it might be. This is a topic to which we may return.

© MARTIN H GOODALL