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

Told you so

When commenting on the Cala Homes judgment last week and the government’s reaction to it, I pointed out that Steve Quartermain’s letter on behalf of the Secretary of State reiterating the government’s intention to revoke Regional Strategies and asserting again that this should be treated as a material consideration with immediate effect was of dubious legality and could lead to further legal challenges, not least by Cala Homes.

Clearly they and their lawyers thought so too, and they are now seeking a declaration from the High Court that the government’s intention to revoke Regional Strategies is not a material consideration. They are also seeking to have Quartermain’s letter withdrawn pending final determination of the company’s claim or a stay of its effect until that time.

As I observed earlier, the mere fact that the Secretary of State and his minions would like his intention to scrap Regional Strategies to be treated as a material consideration in the determination of current planning applications and appeals does not make it a material consideration in law. That is a matter for the courts, and so it is perfectly right and proper that Cala Homes should seek a ruling from the High Court on this point.

Meanwhile, as we have seen, the guidance issued to planning inspectors is much more sensible, and pays due regard to Section 38(6) of the 2004 Act. When reporting on that advice I gave credit to someone in DCLG for having had a rare attack of common sense. I should have known better - that advice clearly came from within PINS itself. It was always inherently unlikely that anyone in DCLG would be so sensible.

© MARTIN H GOODALL

Headaches for householders

I have fulminated more than once in this blog about the complexities and ambiguities in Part 1 of the Second Schedule to the GPDO, which sets out the Permitted Development rights for development within the curtilage of a dwellinghouse. Stephen Ibbitson has analysed these provisions in far greater detail than I have had time to do, and has made a brave attempt to make sense of the rules in graphic form on his website http://3dguides.co.uk. However, as Stephen readily acknowledges, even this does not resolve some of the difficulties and uncertainties which the re-writing of Part 1 has thrown up.

I cannot express the frustrations of trying to make sense of Part 1 better than Stephen Ibbitson has done in the note which he has kindly allowed me to reproduce below, and with which I am in entire agreement.

Stephen writes:

The provisions on permitted development within the curtilage of a dwellinghouse are continuing to cause endless difficulties for householders. Since the government published 'guidance' on the new rules (on the Planning Portal),the meaning of its provisions has become even more inconsistent; so much so that its now all but impossible to advise clients what they can and can't do. Interestingly, the areas I identified which were open to interpretation---and clearly flagged up as such in my 3D Guides themselves---have been confirmed by a number of inspectors in the same manner as my own views. At the same time, other inspectors have made conflicting decisions on the same subjects! I have never seen such inconsistency and floundering by PINS in the last 23 years or so I've been involved in the subject. I used to complain to PINS about these (and copy the complaints to Grant Shapps) but they no longer even bother to reply.

The Planning Portal PD guidance document notes (perhaps wisely) that it was drawn up under the previous administration in, it appears, an attempt to distance the coalition from what the guidance is actually saying. To my mind that is a poor excuse - it is still CLG output and officials have provided interpretations which are simply not on all fours with all the consultation evidence used to draft the amendment of the GPDO, let alone the intention to liberalise the householder PD regime. Most notable is the interpretation of 'side elevation' which means that simple, single storey rear extensions on typical 'rear wing' style terraced housing in conservation areas are now barred as PD. Previously (under the original version of the GPDO) they were not even barred in Article 4 areas within conservation areas!

What gets my goat the most about the amended PD is the near contempt displayed by both central and local government about who it’s all for. Householders are treated as though the state is doing them some sort of favour by allowing a piddling little rear extension (where permitted at all). “Be a good little boy and we'll let you have a little bit of what you'd like.” The patronising misanthropy of it all is almost palpable.

When a Victorian terrace, to cite a ubiquitous example, gets a Class B rear dormer extension done, it is common to replace/renew the slates/tiles on the front roof slope at the same time -Class C; it is economic and efficient to do so. It is not uncommon either, when such works are undertaken, to find, and have to replace faulty rafters which have part rotted and/or become worm-infested; a job which, to my certain knowledge, would take a competent carpenter about 3 or 4 hours - a repair, not 'development'. In such a job there is a short time interval, therefore, during which there may be almost no 'roof' left. Yet according to one inspector's construction it would be outside the scope of PD! Why would parliament want that to be the case? It would be absurd, and self-defeating of the purpose of the legislation being there in the first place.

The problem is that appeal decisions get seized upon by LPAs to justify refusals of LDC applications either for something they don't like or just to create a planning application and the fees thereon, thus defeating the whole purpose of PD in the first place. Yes, planning controls are designed to operate in the public interest, but the concept of Permitted Development is part of the public interest equation.

The revised version of Part 1 of the Second Schedule to the GPDO has been the complete opposite of the liberalisation trumpeted by Caroline Flint when introducing in 2008. CLG, their private sector consultants and PINS between them have turned Part 1 into a dysfunctional, scrambled mess which the rest of us are now having to live with. Part of this mess is due to the failure of CLG, their consultants, PINS and LPAs to properly understand the basic geometry (floor plans) of our housing stock, particularly how types/styles follow predictable patterns. It should be remembered that Victorian 'pattern books', upon which the bulk of that era's stock was based, invariably used an almost universal floor plan. Behind the vast kaleidoscopic variety of facades, they're basically all much the same. The same is true of inter-war housing - the ubiquitous hip-roofed semi.

This brings me to the vital point that CLG et al are missing a crucial trick: the opportunity to link liberalised PD to 'eco re-furbs' of the existing stock - a matter of acknowledged importance and a subject on which they are floundering. Refurbishment of the existing housing stock is far more important than the tiny handful of zero carbon new builds which won't amount to hill of beans in the big picture.

Way back in the Autumn of 2007, when CLG published their draft provisions for the revised GPDO for consultation, I implored them in my response to take this on board, and to put the potential link between pattern-based refurbishments and PD at the forefront of the amended Part 1. I literally spelt out to them how to do this and how pattern-based measures would fit neatly into the so called 'impact based' system they were trying to devise. Alas, my efforts fell on deaf ears.

STEPHEN IBBITSON

Stephen has also commented on the fees payable by householders for those developments which fall outside the PD rights under Part 1, and I propose to publish his further note in a future post in a day or two’s time.


[An anonymous contributor has kindly drawn my attention to another source of help on the GPDO and other planning legislation. This is a website compiled by Steve Speed which can be found at www.planningjungle.com. It includes some comments on the ambiguities found in Part 1, and analyses the relevant appeal decisions which have been issued by PINS. This is all part of the growing consensus among planning professionals that Part 1 is in dire need of overhaul. The current anomalies, ambiguities and downright silliness of some of the resulting interpretations of Part 1 cannot be allowed to continue. Ministers must get to grips with the problem as a matter of urgency. MHG]

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