Cala Homes - a further update

On 3 December, I reported that the Secretary of State was making an interlocutory application to lift the temporary stay on the notorious DCLG letter which still sought to make his intention to scrap regional strategies a material consideration in the determination of current applications and appeals. What I did not appreciate (and what I have not seen reported until today) was that there was a hearing on that application before Lindblom J that very day. At the end of the hearing the stay on the letter was lifted (subject to an undertaking from the Secretary of State). In a written judgment handed down yesterday (16 December) Lindblom J set out the reasons for the Order he made on 7 December.

The mystery of the gnomic ‘clarification’ from DCLG (and PINS) on which I commented on 7 December is now made clear. This was the clarification which the Secretary of State had undertaken to the Court that he would publish. I described it at the time as ‘walking on eggshells’, but did not appreciate that it was issued in light of the undertaking given to the Court and the consequent lifting of the stay. As I observed, it leaves considerable uncertainty as to whether or not the Secretary of State’s intention to abolish Regional Strategies should or should not be taken into account in partcular cases as a material consideration which might indicate that applications and appeals should be determined otherwise than in accordance with the Development Plan (which in many cases includes the still currently extant Regional Strategy).

I shall not attempt to summarise Lindblom J’s judgment, other than to note that the Secretary of State’s undertaking was clearly a significant factor in persuading the judge that the stay could now be lifted. It was, as he explained in his judgment, a question of the balance of convenience as to whether the stay ought or ought not to be maintained. Strong submissions had been made on both sides on this issue.

It is worth bearing in mind the judge’s words (having noted the Secretary of State’s acknowledgement to this effect in the course of the proceedings) that “while the present proceedings are alive, it would be open to a local planning authority to give no weight to the Secretary of State's statement and the Chief Planner's letter of 10 November 2010 and the Secretary of State's letter of 27 May 2010, or to defer its decision altogether until after judgment has been delivered. That acknowledgment is helpful as far as it goes. But authorities and inspectors must understand that the very materiality of the statement and letter of 10 November 2010 and of the letter of 27 May 2010, and not merely the weight they should carry, is at issue between Cala Homes and the Secretary of State, and that the present claim may result in the court holding the Secretary of State's actions to have been unlawful. Keeping that in mind, planning decision-makers will in the meantime have to consider how they should deal with the matters that come before them. This will be for them to resolve in every relevant case.”

The order made by Lindblom J on 7 December 2010, in terms agreed by the parties, accordingly set aside the stay, the Secretary of State having undertaken "to cause to be publicised forthwith on the websites of the Department for Communities and Local Government and of the Planning Inspectorate a statement" in the terms with which we are now familiar (even if we are still confused as to what it actually means or is intended to mean!).

It is understood that the substantive hearing in this action will take place in the week beginning 17 January.

[Update: See 7 Feb posting for the judgment.]

© MARTIN H GOODALL

Localism Bill – Enforcement provisions (2)

RETROSPECTIVE PLANNING PERMISSION -
MULTIPLE APPLICATIONS AND APPEALS (continued)

We have not yet finished with Clause 103. It is clear from press statements from De-CLoG that the intention of this clause is to prevent the alleged exploitation of the planning system by gypsies and travellers through lodging multiple applications and appeals for the retention of unauthorised caravan sites. Whatever your view of that may be, the new Section 70C will be a catch-all provision which could well affect many other people who are genuinely attempting to defend their legitimate interests, and it is likely to work injustice for the reasons I explained in my previous post.

Clause 103 will also amend section 174 [in England only] by inserting a provision that an appeal may not be brought under Ground (a) (that planning permission ought to be granted) if the enforcement notice was issued after a related planning application had been made (i.e. in respect of the same matters as are specified in the enforcement notice as constituting a breach of planning control), but before the end of the 8-week period [or 13/16-week period as applicable] under section 78(2) in the case of that application [i.e. the time for appealing against a deemed refusal by reason of non-determination]. Corresponding amendments are proposed to section 177 (the deemed application for planning permission in enforcement notice appeals) and this change will also apply in Wales.

I must confess that I am at a loss to understand the perceived problem at which this amendment is aimed. Where related Section 78 and Section 174 appeals are lodged by the same appellant they are nearly always consolidated and determined together (or should be), so wherein lies the ‘evil’ in this situation? The intention seems to be to force appellants to choose in this situation between appealing the refusal of planning permission or relying instead on the Ground (a) appeal (or deemed application under section 177) in an appeal against the enforcement notice. The only purpose served by this change would appear to be to make a minor saving in administrative time and effort for PINS. Yet I have a nagging feeling that I have missed something here; no doubt it will all become clear in due course.

And we still haven’t got beyond discussing just one clause in the Bill! Clauses 104 to 106 will have to await another post.

© MARTIN H GOODALL

Localism Bill - Second Reading

The Leader of the House announced in Business Questions yesterday that the Second Reading debate on the Localism Bill will be held on Monday 17th January.

© MARTIN H GOOODALL

Localism Bill – Enforcement provisions (1)

Although there are only four clauses in the Bill dealing with Enforcement, they will make substantial changes to the existing legislation. Clause 103 will significantly reduce the scope for obtaining retrospective planning permission where an enforcement notice is in force. Clause 104 will insert some far-reaching provisions in the 1990 Act after Section 171B dealing with the time limits for enforcement action and, in particular, in cases where development has been concealed (no doubt prompted by the Welwyn-Hatfield and Fidler cases). Clause 105 will make a number of changes to the time limits for prosecutions and the penalties which can be imposed by the Courts. Finally, Clause 106 will introduce extensive changes to the remedies available in respect of the unauthorised display of advertisements.

RETROSPECTIVE PLANNING PERMISSION -
MULTIPLE APPLICATIONS AND APPEALS

Clause 103 will insert a new Section 70C in the 1990 Act, which will give local planning authorities the power to decline to determine retrospective applications if a grant of planning permission for the development would involve granting (whether in relation to the whole or any part of the land to which an enforcement notice relates) planning permission in respect of the whole or any part of the matters specified in the enforcement notice as constituting a breach of planning control.

This appears to me to be a very undesirable change, although the limited use which LPAs have made of their power under Section 70A to decline to entertain repeat applications may possibly indicate that the use of this new power could in practice be fairly selective. The power would clearly be discretionary, and one would expect circular guidance similar to that in Circular 14/91 advising LPAs not to use the power indiscriminately. The right of appeal under Section 78 would be excluded (in the same way as under Section 70A), but the LPA would have to observe the Wednesbury principles, and so such action on the part of the LPA would in principle be susceptible to judicial review. Nevertheless, this very limited (and somewhat expensive and uncertain) protection for the applicant is hardly adequate to prevent unfair treatment at the hands of an LPA.

No change is to be made to Section 180, so that if the LPA does decide to entertain the application, and permission is then granted, either by the Council or on appeal, the enforcement notice will still cease to have effect so far as inconsistent with that permission.

I frankly cannot see the need for the new Section 70C. If the LPA thinks that an application for retrospective planning permission in these circumstances is unacceptable, they already have the option of refusing that application. It seems perfectly reasonable that such a decision should then be capable of being appealed under Section 78. If it is unmeritorious, the appeal will be dismissed (and there is the possibility of an award of costs against an unreasonable appellant). However, a retrospective grant of planning permission could be the only way of resolving the type of anomalous position to which I have referred in previous posts where an enforcement notice has taken effect in circumstances in which no enforcement notice should have been served or in which it would have been quashed if there had been a timely appeal against it. I have already drawn attention to the injustice wrought by the preclusive provisions of Section 285, and this new provision could well compound such injustices.

I will deal with Clauses 104 to 106 in future posts.

© MARTIN H GOODALL

Localism Bill – the debate begins

Quite a few people have rushed forward in the queue to be first with their reactions to the Bill, but I propose to work through the text of the Bill more carefully before sounding off on particular issues. There are undoubtedly some real ‘nasties’ in the Bill, but then we have always known there would be.

Rather than tackling the Bill in the order in which the various provisions are presented, I propose to take first the Enforcement provisions, partly because it is an area in which I am frequently involved on a professional basis and also because it seems to me that the proposed changes are important and potentially damaging to the interest of those who have the misfortune to incur the displeasure of the planners. Another very controversial area is the whole subject of “Neighbourhood Planning”, and this too calls for close attention. It may be next week before I am in a position to set out my thoughts on these provisions, but they clearly merit careful examination before I attempt to do so.

Incidentally, expressions of relief that the Bill does not contain some of the proposals set out in the Tories’ pre-election ‘Green Paper’ (“Open Source Planning”) are somewhat premature. It was always clear that ideas such as third party rights of appeal against the grant of planning permission and the serious curtailment of the right to appeal against the refusal of planning permission would not be included in the current Bill. But that does not mean they have gone away. My understanding is that they are still on the agenda, and that the government intends to introduce them at a later date. Of course, there is always the hope that those ideas might still fall by the wayside, whether due to lack of parliamentary time to introduce further legislation later in the present parliament, or in light of difficulties encountered in implementing the ‘Localism Act’ when it eventually becomes law. At present, however, the threat to the appeals system contained in “Open Source Planning” is still there, albeit postponed for the time being.

© MARTIN H GOODALL

Localism Bill – an overview

A lot of attention has rightly focused on the changes which the Localism Bill will make to the planning system, but this is only one part of a very substantial piece of legislation which makes far reaching changes to local government and the way it operates. Nevertheless, in keeping with the brief I have set myself, I shall concentrate on those provisions in the Bill which deal with town and country planning, although I may take a look later at one or two other clauses which could have a peripheral effect on the operation of the planning system.

The section of the Bill primarily concerned with planning is Part 5. This comprises seven chapters, covering (1) Plans and strategies, (2) Community infrastructure levy, (3) Neighbourhood planning, (4) Consultation before applying for planning permission, (5) Enforcement, (6) Nationally significant infrastructure projects, and (7) Other planning matters. Important changes are also proposed in London, which has a section of the Bill to itself (Part 7), Chapter 2 of which provides for the setting up of Mayoral Development Corporations.

Part 5 of the Bill has to be read in conjunction with Schedules 8 to 13. These deal with (8) Consequential amendments flowing from the abolition of regional strategies, (9) Neighbourhood planning, (10) the process for making neighbourhood development orders, (11) Neighbourhood planning - community right to build orders, (12) Neighbourhood planning - consequential amendments, and (13) Infrastructure Planning Commission - transfer of functions to the Secretary of State.

The changes in London are supplemented by Schedules 20 to 23, comprising (20) Consequential amendments flowing from abolition of the London Development Agency, (21) Mayoral development corporations, (22) Consequential and other amendments related to Mayoral development corporations, and (23) minor and consequential amendments of the Greater London Authority Act 1999 in relation to the London Environment Strategy.

I propose to look at some of these provisions over the next few weeks.

© MARTIN H GOODALL

Frankenstein’s Monster

The “Decentralisation and Localism Bill” (now with its name shortened to just the “Localism Bill”) has at last been published, and manic cries can be heard coming from within DCLG’s Eland Street headquarters – “It’s alive! It’s alive!” (When reading these words, think either of Kenneth Williams in ‘Carry on Screaming’ or Gene Wilder in ‘Young Frankenstein’.)

As I expected, it is a truly massive document, which makes even the Secretary of State look quite slim by comparison. Someone predicted a few weeks ago that the Bill could have as many as 100 clauses; in fact it contains 207 clauses and 24 schedules and runs to 406 pages of text (printed in two volumes).

Those familiar with Mary Shelley’s novel will be aware that the real trouble began when the monster escaped from the laboratory and got out into the surrounding towns and countryside. That is what is worrying a lot of people involved in planning and development. It is the practical consequences of unleashing this Frankenstein’s Monster into the world that really scares us.

Meanwhile, one wonders how parliament is going to handle such an unwieldy Bill. I strongly suspect that discussion of large parts of the Bill may well end up being guillotined, which will lead to what are in any event controversial and possibly unworkable proposals passing into law without any proper scrutiny.

I don’t propose to rush into superficial comment on the Bill’s detailed contents. I will examine at my leisure those parts of the Bill which affect the planning system, and draw attention to particular points as they arise. There are bound to be second and third thoughts on the part of ministers and their advisers as the Bill wends its way through the parliamentary process, and some parts of the Bill may emerge in a form which differs significantly from this first draft.

So watch this space in the weeks and months to come.

© MARTIN H GOODALL