Round 2 to Cala Homes

Cala Homes have obtained interlocutory relief in the High Court in their bid to prevent the Secretary of State from treating his intention to abolish Regional Strategies as a material consideration in the determination of current planning applications and appeals.

Cala’s renewed application to the High Court has been expedited and the Chief Planner’s letter (in which the Secretary of State’s intention to treat his intention to abolish RS as a material consideration was reiterated) has been stayed pending a full hearing.

This interlocutory ruling does not necessarily indicate the way the case will ultimately be decided, but it does have the effect of ensuring that, until that hearing, those Regional Strategies which have been formally adopted will remain in full force and effect, and the Secretary of State’s continuing determination to revoke them is not (for the time being) capable of being a material consideration in those cases that are about to be determined.

So Regional Strategies, where adopted, remain an integral part of the Development Plan and decisions must be made in accordance with that plan (in accordance with Section 38(6) of the 2004 Act) unless material considerations – which cannot now include the forthcoming abolition of the Regional Strategy – indicate otherwise.

No doubt everyone will await the third and final round of this litigation (the substantive hearing in the High Court) with great interest.

Update (3 Dec): Apparently, Uncle Eric isn’t happy with the interlocutory Order made by the High Court staying the effect of the letter from his Department which sought to make his intention to scrap regional strategies a material consideration in the determination of current applications and appeals. So the government’s lawyers are now trying to get the stay removed. Initial indications had been that the substantive hearing in the High Court might be later this month, but latest indications are that it will not now take place until some time in the New Year. I don’t know whether the Department will be seeking an interlocutory hearing in the meantime on their application to lift the temporary stay on the infamous letter, but no doubt that will become clear in the near future.

© MARTIN H GOODALL

Could PINS be swamped by the IPC?

Rumours have reached my ears that there is concern within PINS that in subsuming the Infrastructure Planning Commission, which is intended to become PINS’ ‘Major Infrastructure Planning Unit’, the Inspectorate is being asked to absorb and digest an organisation which is somewhat larger than itself. At the very least this has major implications in management terms, but the fear is that it might turn out in practice to be a reverse take-over, whereby the enlarged Planning Inspectorate is in effect the IPC with PINS bolted on as an adjunct, even though the new organisation still bears the PINS name.

Like so many other changes proposed by the present government, the merger of the IPC with PINS will require legislation (expected to be incorporated in the ‘Localism Bill’) amending the 2008 Act and bringing about the merger. Only time will tell whether the fears currently emanating from within PINS will prove to be justified.

A longer term threat to PINS and its current functions is contained in the Conservatives’ pre-election ‘Green Paper’ (“Open Source Planning”) which seems to envisage the abrogation of the current right to appeal against the refusal of planning permission, and to replace it with what amounts to no more than a desk-based review to check that correct procedure was followed in assessing the application, and that the decision reached is not in contravention of the local plan. The suggestion is that the first of these issues would be dealt with not by PINS but by the Local Government Ombudsman, leaving PINS to deal solely with appeals concerning ‘correct’ application of the local plan. So far as I am aware, this proposal does not seem to feature in the expected contents of the imminent ‘Localism Bill’, but we cannot be sure about this until the draft bill emerges.

PINS (“The Planning and Housing Inspectorate” to give it its full official title) celebrated its centenary last year, having been set up under the 1909 Act. It looks as though its days may now be numbered, at least in the form in which it has existed for the past hundred years and that it may survive in name only, with its functions radically altered.

© MARTIN H GOODALL

More mobile advertisements

Shortly after the Tile Wise case about advertising on a vehicle (on which I commented on 21 October), the Divisional Court heard another appeal by way of case stated on precisely the same point. This time the appeal was by the prosecutor against the dismissal by magistrates of a prosecution alleging several offences involving the display of mobile advertisements on a farm, so as to be readily visible from the M62. This was the case of Calderdale MBC v. Windy Bank Dairy Farm Ltd and Steve Quinn [2010] EWHC 2929 (Admin). On 12 November, the Court gave its reasons for dismissing this appeal and upholding the acquittal of the defendants by the magistrates.

It is fair to say that this case turned primarily on the factual evidence or, to be precise, on the inadequacy of that evidence. The magistrates had concluded that they could not be satisfied beyond reasonable doubt that the offences as charged had actually been committed. The High Court could find no grounds for saying that this was a conclusion which no reasonable bench of magistrates could reach on the facts before them, and so the prosecutor’s appeal must necessarily fail.

The magistrates had received evidence of several visits made by the LPA’s staff who had taken photographs of the number, type and position of several vans and lorry trailers on the land, adjacent to the M62 motorway. The dates of the taking of these photographs were stated as 20 October 2006, 9, 13 and 31 March 2009, and 13 and 22 June 2009. On cross-examination, the Applicant's main witness accepted that there had been no measurements taken of the precise position of the vehicles, nor any notes made of licence plate numbers or trailer markings. The magistrates were not therefore satisfied beyond a reasonable doubt that these vehicles had not been moved between the various visits undertaken by the witness.

The witness further stated that in his view at least in respect of one vehicle the wheels were immobilised, such that it could not be considered to be a vehicle normally employed as a moving vehicle, but rather one that could not be used for any other principal purpose other than advertising, as it was in effect static. In cross-examination, he accepted that he did not have any engineering or mechanical qualifications to hold this view nor could he be certain of his view. The magistrates did not find this to be evidence upon which they could rely to the required standard.

The magistrates upon considering the photographs produced found as a fact that the vehicles and trailers were not the same ones shown in the pictures on all the dates on which they had been taken. In all the photographs there was a 40-foot trailer, but in the earlier photographs it appeared to be white whereas in later ones it was blue. In other photographs, some of the vehicles and trailers were clearly different.

The prosecuting authority provided no evidence upon which the magistrates could make a finding of fact as to whether the 40-foot trailer had or had not been moved during the period of time covering the charges before the Court. Against this, the second defendant when giving his evidence produced documents, which were not successfully challenged, detailing a trailer being exchanged with another from its Shrewsbury base.

The magistrates’ conclusion was that, on the balance of probabilities, both defendants had satisfied the requirements of the exemption from the requirement to obtain consent for the display of the advertisements on the side of the lorries and trailers. They accordingly dismissed the prosecutions.

Although counsel for the appellant prosecutor sought to rely on the decision in Tile Wise, it is clear that the case in Calderdale did not turn on the interpretation of the exemption in the first schedule to the Control of Advertisements Regulations (as it did in Tile Wise); it simply came down to a question of fact and degree. The prosecuting authority had simply failed to prove its case on the facts. The magistrates were therefore entitled to dismiss the prosecutions.

This case may serve to explain why so few prosecutions seem to be brought by LPAs against this type of unauthorised advertising. It is clear that in order to be sure that a conviction will be secured, the LPA will have to be very thorough in gathering its evidence, and must be able to prove that where the photographic or other evidence covers two or more different dates, that evidence does refer to one and the same vehicle, and that if the charges relate to a period of time during which the display of advertisements is alleged to have continued, the vehicle was not moved within that time. This may place an almost impossible burden on LPA enforcement staff seeking to prosecute this type of infringement, but it does underline the fact that prosecutors must prove their case in the Magistrates’ Court or the Crown Court beyond reasonable doubt.

© MARTIN H GOODALL

Concealed development still on the agenda

Readers will no doubt recall the two cases which arose from the concealment of development which it was then claimed had become lawful under the four-year rule. In Welwyn-Hatfield, the Court of Appeal, applying the clear ruling in FSS v Arun DC [2006] EWCA Civ 1172, held that the deliberate concealment of the development did not prevent the four-year rule from operating. In the case of Fidler, the High Court upheld an Inspector’s decision that the concealed development had not been substantially completed (in accordance with the criterion laid down by the House of Lords in Sage) until the straw bales hiding the development were removed. The straw bales, and their subsequent removal, were regarded by the Inspector (and apparently by the High Court) as being an integral part of the development.

Both decisions are the subject of further appeals. I understand that the Supreme Court is likely to hear the appeal in Welwyn-Hatfield some time next term (i.e. between Christmas and Easter). The appeal in Fidler is due for hearing in the Court of Appeal, but so far as I am aware no date has been set, and it is impossible to estimate when that appeal may come on.

So it looks as though we may have to wait a while longer before we get a definitive answer on the issues arising from these two cases. For what it’s worth, I think the Court of Appeal got it right in Welwyn-Hatfield - one simply has to look at what the statute actually says. If this leads to what some may regard as an unsatisfactory result, it is for parliament to amend the legislation, and the courts ought not to concoct some strained interpretation in order to produce an expedient result.

As regards Fidler, I find it very difficult to understand how the removal of a free-standing pile of straw bales can be brought within the definition of operational development, although the thrust of the House of Lords decision in Sage was that one has to take into account the entirety of the project, rather than confining one’s consideration to those operations which actually constitute development. This view, however, differed markedly from the conclusion reached in that case both at first instance and in the Court of Appeal, and there must be some considerable remaining doubt as to how far the Sage doctrine can be taken, and in particular whether it can be said to include the removal of a physically separate pile of straw bales.

The so-called ‘Localism Bill’ will still be going through parliament at the relevant time, so there is a possibility of an amendment to the Bill being proposed to deal with these issues. The precedent represented by the rules on demolition, which were hurriedly shoved into what became the 1991 Act is not encouraging. A similarly ill-thought-out amendment made to the same Bill was the provision which then became Section 54A of the 1990 Act (now, in slightly amended form, Section 38(6) of the 2004 Act). So before anyone makes any hasty proposals to amend Section 171B, the implications of such a change, and the way it would work in practice need to be carefully thought through.

[UPDATE (14 December): The Localism Bill will make amendments to the 1990 Act which will introduce a procedure for taking enforcement action 'out of time' against development which has been concealed. See later posts in this blog dealing with the enforcement provisions in the Bill (in this case Clause 104).]

© MARTIN H GOODALL

More is less

Fellow planning professionals will no doubt be aware that the Welsh Assembly Government is consulting on proposed changes to householder permitted development rights in Wales. The consultation period runs until 15 Feb.

If you take at face value what the WAG says, they want to make a number of changes to allow “more improvements” and to clarify what permitted development householders can do. They claim that the proposed changes will:

• Allow householders freedom to make more improvements and alterations within their property without planning permission;
• Set conditions for some permitted development rights so developments are carried out in a way that minimises impact on others, and takes account of flood prevention measures; and
• Place more restrictions on permitted development within World Heritage Sites.

Stephen Ibbitson, who as you know from recent posts takes a close interest in PD issues, has pointed out to me that whilst the new draft Order 'tidies up' some of the mess in the English revision to Part 1 of the Second Schedule to the GPDO, the proposed new Welsh PD Order is most notable for how much MORE RESTRICTIVE it will be than the current order.

So the claim by the Welsh Assembly that the proposed changes will "allow householders freedom to make more improvements and alterations within their property without planning permission" represents either ignorance/stupidity or downright mendacity. The new Order would be even more restrictive that the English version and cannot but add to the number of applications for minor developments that householders will be obliged to make in Wales in the future.

Planning professionals in Wales should make strong representations to WAG about this. Maybe it would give us all a bit more work, but it cannot be in the interests of the wider public, nor will it assist administrative efficiency if planning departments are clogged up with a lot of householder applications for minor development. The whole idea of amending the GPDO was to avoid this. It takes a peculiar kind of bureaucratic genius to dream up a ‘simplification’ of the order which has precisely the opposite effect of what is purportedly intended.

© MARTIN H GOODALL

The future of the Community Infrastructure Levy

You are no doubt aware by now that the government has decided to retain CIL, but to amend some of the details. As a ‘stakeholder’, I have been privileged to receive a communication from DCLG drawing my attention to the recently amended notes on the CIL regime. I don’t flatter myself that anyone in “De-CLoG” (as I gather it is called by insiders) actually reads this blog or would take any notice of it if they did, so I assume this arises from my being registered as a professional user of the Planning Portal, and that other portal users got the same note.

The note acknowledges that the proposed changes will require primary legislation amending the provisions of the 2008 Act. This will be included in the ‘Localism Bill’, when it finally appears. This all-embracing bill seems likely to be of massive proportions – possibly even larger than the Secretary of State himself.

Until we see the Bill, it is still not entirely clear how the proposed changes will work. The note does not give any details as to the precise nature of the proposed changes to CIL. As provided in the 2008 Act, when CIL is fully in force there will be restrictions of the use of planning obligations under Section 106. Amended restrictions will take effect from April 2014, or earlier where a charging authority starts to charge the levy. Perhaps the most important point (already incorporated in the 2008 legislation and in the regulations) is that it will no longer be possible to demand developer contributions to fund infrastructure on a tariff basis through the medium of a Section 106 agreement. The intention is that CIL will be used in future as the mechanism for pooling contributions from a variety of new developments to fund infrastructure.

Planning obligations under Section 106 will continue to have a role, for example as the medium by which the provision of affordable housing will be secured, and for restricting the use or development of land where this would be a more effective method than a condition attached to a planning permission.

I confess that I did not find the new ‘overview’ of CIL particularly enlightening. (Admittedly I had been hoping that CIL would just go away.) Hopefully we shall all get to grips with it once practical implementation is under way, and when we know how the new Bill modifies the rules.

© MARTIN H GOODALL

Fees fraud

As promised last week, I am posting below some further observations from Stephen Ibbitson arising from the confusion caused by the revised rules for householder PD. All too often this results in householders having to make applications for express planning permission for minor developments and, as Stephen points out, it is costing them a disproportionate amount in application fees, and these fees are set to rise further.

Stephen writes:

We can perhaps expect that LPAs will interpret PD so as to create a planning application and thus generate fees; that much is no surprise. But how will this pan out, I wonder, for householder application fees in the future now that the level of fees is to be determined locally? I worked out from data published in the new fees consultation document that for every £100 somebody earned in 1989 they would have to now earn £424 to match the increase in fees since then. (Perhaps I should flag that up to the Daily Wail?!?) The last increase was 23% as recently as 2008 and still they are, apparently, not covering costs. Doesn't it occur to government that the problem, just maybe, does not lie in the inadequate level of fees but in how increased receipts are being spent?

I have recently come across a case in my own village: a 6ft x 4ft greenhouse (a modest development by any standards) erected in a side garden. Cost of greenhouse = circa £250; cost of planning application, drawings, fees etc for erection of greenhouse = circa £2,500. NB: It would have been PD under the old regs.

I have never researched this, but I have the impression that householder application fees - at £150 + VAT - are effectively subsidised; they have been held at lower levels than real costs for many years. So with LPAs free to set levels 'at cost' I have a hunch that householder application fees will at least double under the proposed new regime, possibly triple.

The consultation document says: "We will undertake consultation on this proposal with small businesses and their representatives in parallel with consultation with the wider public", but how will they consult with the 'wider public' and, in particular, with householders? Householders are not collectively represented at all except rather nebulously through local councillors. They have no collective voice. There is no way the government can meaningfully 'consult' them. I have toyed in the past with the idea of trying to set up a National Householders Association to remedy the problem. But the trouble is that most householders deal with the system as a one-off experience. Having gone through the planning application process (quite possibly/probably one which was not necessary in the first place) and got through to the other side, most people would rather stick their heads in a bucket of sick that have anything more to do with! And those who've yet to go through the mill simply wouldn't believe in advance what they could be in for.

STEPHEN IBBITSON