Localism Bill delayed?

We were being promised that the long-awaited (or dreaded) “Decentralisation and Localism Bill” would be published today (18th November), but what we have instead is a statement from Uncle Eric, waffling about ‘people power’ and referring to the Localism Bill, which will be unveiled ‘later’ (but does that mean later today, or just ‘later’?)

In a fruitless search for the Bill, I noticed on the DCLG’s website a press release dated 10 November which mentioned that the Coalition Government would be introducing the Localism Bill to Parliament “later this month”, and that “the Bill is expected to begin its passage through Parliament before Christmas.”

So maybe we shall all have to contain our excitement for just a little bit longer.

[Update (19 Nov): I had expected that news of the Bill would be included in yesterday’s Business Statement in the Commons. However, the only mention of it was a casual reference made by The Leader of the House in the course of answering another question, when he said “The Government will shortly introduce a localism Bill”.]

[Further Update (22 Nov) : According to Local Government Chronicle, the Bill has been delayed by another two weeks. Apparently, it is now promised for the week ending 10 December (but don’t hold your breath!). As I mentioned in an earlier comment (see below), there is very unlikely to be time for a Second Reading debate before Christmas.]

© MARTIN H GOODALL

Interesting times

There has been a lot of news coming in over the past week or so which adds up to a whole raft of major changes in the way the planning system will work in future. Those of us professionally involved in the field may well regard this as ‘situation normal’; constant change has been a feature of town and country planning for as long as I can remember. However, there is little point in my repeating here news which you will no doubt have read on various websites or picked up through other news media. The objective of this blog is primarily to comment on actual changes in planning law and procedure, rather than simply regurgitating the latest press releases.

If one strips out announcements of future changes and consultation documents, it will be seen that rather less has actually happened so far, although the news this week does give us advance notice of the changes we can expect over the next two or three years. This includes a warning that application fees are set to rise again (and to be fixed by Councils locally, so we shall have to look up each Council’s fee schedule separately before submitting an application). Then there is the forthcoming demise of CABE, which is due for the chop by the end of March. The weeping and wailing and gnashing of teeth has already started. Legislation will also be introduced to give councillors more freedom to express their views in advance of the determination of planning applications, but before there is too much rejoicing in town halls it should be borne in mind that some of the constraints on councillors’ conduct have been imposed by the courts rather than by the last government’s legislation.

Meanwhile, as I noted in a recent post, there are all the consequential changes which will be brought about as a result of the new Planning and Local Government Bill (yes, I know – “the Decentralisation and Localism Bill” [ugh!]), including a whole lot of subordinate legislation, policy guidance and related material which we shall have to digest over the next twelve months or more.

I expect to be concentrating in the next few weeks on getting to grips with the contents of the new Bill, now only two days away if the government keeps to its own timetable. Meanwhile, the courts continue to churn out judgments on planning cases, some of greater interest than others, and it is a continuing worry that the means by which one becomes aware of these cases is still rather ‘hit and miss’.

We do indeed live in interesting times.

© MARTIN H GOODALL

Putting flesh on the bones

I have complained more than once in these pages that what we have had from the Coalition so far in relation to town and country planning is largely ‘government by press release’. That is now beginning to change, as concrete proposals to implement the government’s somewhat hare-brained schemes are gradually worked up into draft legislation and finalised policy statements. A major step in this process will be the publication of the so-called “Decentralisation and Localism Bill” which is now promised for 18 November. It is likely to be a weighty tome.

I will defer comment on the Bill until its contents become clear later this week, but one welcome aspect of the Bill is the proposal to allow councils to return to the committee system should they wish to, but presumably this will not apply in the twelve largest cities which are to have directly elected mayors (subject to local referenda to be held in May 2012). No doubt the details will become clear when the Bill is published.

In the meantime, DCLG has also published a timetable for the implementation of other elements in its plans derived from the Conservatives’ pre-election ‘Green Paper’ (“Open Source Planning” [sic]).

Unfortunately, the DCLG press release contained the usual waffle about ‘putting communities in charge of planning’, but among the other items mentioned (in no particular order) were

• the publication of the promised “National Planning Framework” in April 2012
• the continuation but (unspecified) ‘reform’ of the Community Infrastructure Levy
• the introduction by July 2011 of a Bill to implement Tax Increment Financing
• the preparation and introduction (between November 2010 and April 2012) of secondary legislation to give effect to the statutory changes set out in the ‘Decentralisation Bill’
• followed by a programme (running from November 2011 to April 2012) intended to “help communities understand their new rights and to encourage take-up of community ownership of assets and services”

What is not yet clear (but may perhaps be partially revealed by the new Bill) is the means by which the government intends to bring about ‘radical reform’ of the planning system so as “to give neighbourhoods much greater ability to shape the places in which they live, based on the principles set out in the Conservative Party publication ‘Open Source Planning’”.

One welcome move is the promise to develop proposals to streamline the process of producing development plans, although this also involves a backward step in that Inspectors’ recommendations will no longer be binding on Councils, so we shall be back to the unsatisfactory situation of Councils being able to ignore the objective judgment of Inspectors on unsatisfactory and unjustified policies, and in particular the Council’s failure to designate sufficient housing sites in the plan.

At the same time, the government intends to develop proposals (as yet unspecified) “to empower local communities to bring forward neighbourhood plans through the structure of either a parish council or a newly-formed neighbourhood forum”. The Department also intends “to work with a small number of places to develop neighbourhood plans using existing powers”. The timetable for these initiatives will run from now until April 2012. This programme is also intended to “empower local communities to bring forward their own plans for their neighbourhoods”. Funding is intended to be put in place by April 2011 to help town and parish councils to develop neighbourhood plans, and monitoring of the number of neighbourhood plans will start from April 2013, identifying the number of people involved in the process of their production (not very many, I suspect). There is more on these lines, but it is all a bit unclear and we shall have to await the relevant secondary legislation before we know how all this is likely to work out in practice.

This all sounds ‘fine and dandy’, but my natural scepticism leads me to wonder whether all this new-fangled ‘community involvement’ in planning will actually work. There are many, including me, who fear that it will just be a charter for the NIMBYs to rule the roost. Meanwhile, we shall be faced with continuing uncertainty as Councils struggle to get to grips with the new system. The planning system has been subjected to years of flux and change already and it looks as though it will have to endure years more of it. Frankly, it is not what the country needs.

© MARTIN H GOODALL

Scrapping Regional Strategies was unlawful

Judgment has been given today in the Cala Homes case challenging Eric Pickles’ abolition of Regional Spatial Strategies. The High Court found that the way this was done was unlawful and so the Secretary of State’s action in abolishing RSS has been quashed.

The effect of today’s judgment is to reinstate the various Regional Spatial Strategies so far adopted, at least for the time being. The government is still hell-bent on abolition of this level of strategic planning, and its permanent abolition will form part of the ‘Decentralisation and Localism Bill’ due to be introduced in parliament later this month. However, the huge policy vacuum created by Pickles’ purported abolition of RSS will at least be filled in the immediate future, and it is to be hoped that some means of plugging that gap will be found in the course of the passage of the new Bill through parliament.

I have not yet seen the judgment itself, so I cannot give any further details at present. An appeal to the Court of Appeal is a possibility if the government feels sufficiently strongly about it, and is not prepared to wait another year or so for the new Bill to become law. Things should become clearer in the next day or two when all concerned, including DCLG ministers, have had the chance of digesting the High Court’s decision in more detail.

LATER: Since posting this comment this morning, I have now had a chance to read the judgment. The challenge succeeded primarily on the ground that the abolition of Regional Strategies defeated the statutory intention of the 2004 Act (as amended in 2009) that there should be such strategies in place. The Secretary of State had in effect abused the power granted by the Act to cancel Regional Strategies; there was a clear statutory intention that there should be a system of Regional Stategies, and so there was an implication that any Regional Strategy cancelled under this power would be replaced. The judgment follows the House of Lords decision in the case of Hadfield. The cancellation of Regional Strategies was also in breach of environmental assessment regulations, and so was unlawful on this ground.

Rather cheekily, it seems that the DCLG's Chief Planner is now writing another circular letter similar to his letter in late May, reiterating the government's firm intention to abolish Regional Strategies, and asking that LPAs and PINS should therefore treat this intention as a material consideration in all decisions reached in the meantime. As I commented at the time of the original letter, this is of dubious legality in itself and could lead to further legal challenges, not least by Cala Homes. The plain fact of the matter is that, until formally abolished in about a year's time by the 'Decentralisation Bill', when this is eventaully passed, Regional Strategies where they had been formally adopted (in, I believe, seven regions) will remain an integral part of the statutory Development Plan. Section 70(2) of the 1990 Act and Section 38(6) of the 2004 Act will apply accordingly, and it is for the independent judgment of decison-makers (including Planning Inspectors) whether or not to treat Quartermaine's letter as a material consideration at all and, if they do so, what weight to give it. Just because some pipsqueak in the DCLG says they want the intended abolition of Regional Strategies to be treated as a material consideration does not in fact make it a material consideration in law.

A FURTHER FOOTNOTE: It is interesting that in guidance subsequently issued to Inspectors in light of the Cala Homes decision, the suggestion that the intention to revoke Regional Strategies might be a material consideration is down-played, and stress is laid instead (quite correctly in my view) on the fact that RS is now once again part of the statutory Development Plan (at least in those regions where it had been formally approved) and attention is drawn to the requirement contained in Section 38(6) of the 2004 Act that appeals must be determined in accordance with the Development Plan unless material considerations indicate otherwise. This situation is likely to obtain for at least another 12 months, and so the abolition of RS after that date is unlikely to be a material consideration in the immediate future. It seems that the denizens of DCLG have had a rare outbreak of common sense.

© MARTIN H GOODALL

Watching and waiting

There are several topics on which I am itching to comment, but at the time of writing they are still ‘in the pipeline’.

The judgment of the High Court in the Cala Homes case is expected daily. This is the challenge which Cala Homes and a couple of other developers brought against the cancellation of Regional Spatial Strategies. If I were asked to make a small wager on the outcome, I would suggest that this challenge probably won’t succeed, but you never know.

Also this month, the Court of Appeal is due to hear the appeal in the Herefordshire polytunnels case about which the NFU got so excited when permission to appeal was granted in the summer. If judgment is reserved, we may have to wait until next month for the result.

The major event this month which everyone is eagerly awaiting is the promised publication of the Planning & Local Government Bill (which the government insists on calling by the rather silly name of the “Decentralisation and Localism Bill”). This is likely to be a major piece of legislation in terms of its length and complexity, and so I would not be at all surprised if the timetable were to slip.

Finally, I am wondering what happened to Mr Fidler’s intended appeal to the Court of Appeal against the judgment of Sir Thayne Forbes in February. This, you may recall, is the case involving the concealment of development behind a pile of straw bales. It is not the question of concealment which is in issue in this case (on which the Court of Appeal has already made a clear ruling in the Welwyn-Hatfield case) but whether removal of the straw bales to reveal the new dwelling in all its glory was an integral part of the development, so that the development was not substantially completed (as per the judgment of the House of Lords in Sage) until that had happened.

Meanwhile I have lots of work to get on with, so I shan’t be twiddling my thumbs while we wait for news of these various matters.

© MARTIN H GOODALL

Shelf life of an EIA

The EIA regulations are silent as to how long a screening direction lasts. There is therefore no ‘sell-by date’ attached to an EIA, but there is of course a well-established rule that the LPA (or other decision-maker) must take into account any change of circumstances between its original assessment of an application and actually issuing a planning permission (see the well-know Kides case).

In R (Mageean) v SSCLG [2010] EWHC 2652), the High Court has quashed an appeal decision granting planning permission for a wind turbine, because the Secretary of State should have reconsidered a screening direction given six years before the appeal decision, when it had been determined that the wind turbine was not EIA development. It was not the lapse of time which led to a need to reconsider the requirement for the screening direction to be reconsidered, but a material change in circumstance in the meantime. A change of circumstances could render a screening opinion out-of-date within weeks but, on the other hand, if there were to be no change of circumstance, the screening opinion might hold good for many years.

The LPA (Caradon DC) had given a screening opinion in 2003 as to whether the proposed wind turbine would be an EIA development. It decided that it would. The developer accordingly requested a screening direction from the Secretary of State who advised that the development was not an EIA development. Three years later, in 2006, an area close to the application site was designated as a World Heritage Site. A planning application for the wind turbine was then made in 2007, which the LPA refused on the ground that it would be detrimental to the appearance and character of the landscape and contrary to development plan policies seeking to protect the landscape including the World Heritage Site.

An appeal against this refusal was allowed in 2009. It was this decision which the claimant sought to quash, arguing that the Planning Inspectorate should have referring the case back to the Secretary of State for a review of the 2003 screening direction because of the lapse of time and the subsequent designation of the World Heritage Site.

The question was whether the change in circumstance could, rather than would, affect the Secretary of State's screening decision. Only he could make that decision. A change of circumstances would not automatically require a reference back to the decision maker. That would depend on the circumstances and the extent to which the development might have a significant effect on the environment. There may be changes in circumstance which would not lead to a different screening decision.

In the present case, the designation of a nearby area as a World Heritage Site was a material change in circumstance and the Planning Inspectorate should have considered whether or not to refer the screening direction back to the Secretary of State for reconsideration on the grounds that the change could affect the screening decision.

© MARTIN H GOODALL


[COMMENT: Tim Webb asks whether I have any thoughts on the shelf life of EIA survey information. On the basis of the case reported above, and also matters I have dealt with myself, I would suggest that the shelf life of EIA information is entirely dependent on the circumstances. If those circumstances have changed, then that EIA information can no longer be relied upon. I suggested to a client in one case that the ecology report ought at least to be revisited due to the lapse of time. They decided not to do so, and as it was not challenegd either by the LPA or by any third party objector, there was no problem. This is really the key to the question. If the LPA raises no objection and if third party objectors are unlikely to make a fuss, then maybe 'old' EIA information can still be relied upon. It is where proposals are controversial and other parties are looking for some way of de-railing the development that you may run into trouble with allegedly out-of-date EIA information.]

Ultra vires acts

One not infrequently hears of local authorities acting outside their powers nowadays, due primarily to ignorance as to the limits of those powers or of the steps required in order to exercise them lawfully, but in some cases there is more than an element of arrogance on the part of senior officers, even when third parties have pointed out that the Council cannot lawfully proceed in the manner proposed.

One such case reached the High Court earlier this year - R (Martin-Sklan) v. London Borough of Barnet [2010] EWHC 2482 (Admin) when Ouseley J granted an injunction ordering the removal of playground equipment installed by the London Borough of Barnet in creating a children's playground without the planning permission it needed and without the authority of the relevant committee or officers of the Council.

The Council accepted that the decision to create the children's play park was not taken by anyone with authority to take it and did not have the planning permission which it required, because its scale fell outside the scope of the permitted development rights for local authorities under Part 12 in the Second Schedule to the GPDO.

The Council whilst conceding that it had acted unlawfully sought to resist an injunction. However, Ouseley J noted that the claimant had been asking the Council to stop the development whilst various issues were resolved, but the Council had nonetheless proceeded to build out the playground. He accepted that the requirement that the equipment be removed and the ground be restored might lead to a waste of money, which would be regrettable, but he considered that that was the appropriate course. There would therefore be an order that the equipment be removed and the open space restored to its previous condition.

One hopes that this case will serve as a salutary reminder to local authorities and their officers not to act outside their powers. When I first started work in local government, over 30 years ago now, I had it drummed into me that I should always ask myself “What is my authority for doing this?” It is a question that local government officers should always have in the forefront of their minds.

Meanwhile, another case which has reached my ears concerns serious damage done by Monmouthshire Council to a Scheduled Ancient Monument – the Clawdd Du in Monmouth. The Council was repeatedly warned not to carry out the works to this ancient ditch which they proposed, but they carried on regardless. It took the intervention of CADW before work stopped, but not before significant damage had been done to the archaeological deposits . It remains to be seen whether the Council or its senior officers will be prosecuted for this serious offence. If it had been committed by a commercial developer, I have no doubt that they would have been arraigned before the Crown Court. There seems to me to be no reason why the Council and/or the officer or officers responsible for what has occurred should not be similarly dealt with.

© MARTIN H GOODALL