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The Planning Chamber

Yesterday the Government published its response to its Autumn consultation on the reform of Judicial Review.  Following last year’s reforms, the  response affirms the Government’s intention to continue to reduce the role judicial review can play in delaying and/or frustrating development.

The response confirms:

  1. a new specialist Planning Chamber is to be set up, but within the High Court rather than the Upper Tribunal (as previously proposed);
  2. a new permission filter will be introduced to S.288 appeals in order to weed out weak claims early on;
  3. a new threshold will be set which allows the court to refuse to grant leave or relief where the outcome for the claimant is unlikely to have been substantially different from that complained of;
  4. no proposals will be introduced to restrict “standing”;
  5. cost capping and tighter rules are being introduced for the use of Protective Cost Measures, but this will not extend to proceedings relating to environmental cases;
  6. measures be put in places to allow costs to be awarded more regularly against claimants following  refusal of permission at oral hearings; and
  7. the ability to “leapfrog” cases straight to the Supreme Court will be less restricted.

Some of these measures have already found their way into the Criminal Justice and Courts Bill.  It is expected that changes to the Civil Procedure Rules will be introduced to deal with the operation of the Planning Chamber.  It will be interesting to see if the reforms have a genuine impact both in deterring third parties from lodging judicial proceedings.  The key issue is to ensure that the Planning Chamber is properly resourced so that any delays are kept to a minimum.  That will always be far more important than the other measures.

Market restrictions

housing-bubbleForeign investment is being blamed for contributing towards a “housing bubble” in London.  I was asked, while speaking at a conference last week, whether the planning system could be used to dampen the ardour of foreign buyers inflating the value of London’s property market by restricting the sale of new market units to UK residents.

Aside from the fact that we have laws which seek to police and prevent discrimination  (of which such a restriction would normally fall foul), this is not an inherent UK “problem” but rather a London-centric one.  How well does this sit with the active promotion of the UK by the Government for foreign investment?

If local authorities are intent on introducing a restriction, there will need to be justifiable and evidenced planning reasons for doing so, ideally enshrined in a local policy.  The policy will have to be justified, for example, on the basis that the local housing market is not meeting the needs of local residents.  Possible means of addressing this may be to require new development to be marketed locally for a prescribed period, or, more restrictively, require a certain percentage of units to only be made available (both of first sale and re-sale) to local residents but with cascade provisions allowing others with local connections to buy units if there is not enough local interest.  However, I question how easy such a restriction would be to monitor and control.

The fact is that foreign investment in residential property, even if largely within London for the time being, provides wider regenerative benefits for the UK as a whole in contributing to economic growth via the creation of new jobs, new homes and infrastructure. Is this not what good planning should achieve?  Whilst the UK is still coping with the effects of austerity, any investment, whether national or international, should be welcomed unless there is a very clear harm which can be “planned away”.

As Lord Rogers recently noted there is a separate issue about houses being bought but not occupied.  Care is needed not to confuse the two points.

The first or last hurrah?

Hurrah

An appeal asking for a change to affordable housing requirements has finally been refused.  Until now applications have been approved at local level and all appeals have been allowed.  A sense of balance needed to be restored, if only to re-emphasise that there remains a strong policy justification for affordable housing, and for mixed and balanced communities.

The scheme was an outline proposal in Cornwall for 14 houses, 4 of which were affordable.  The appeal was initially supported by a viability appraisal in which there were acknowledged errors.  A new appraisal was produced at the hearing.  The appraisal was based on an illustrative scheme and there was no evidence about the costs of alternative designs that might deliver 10 market homes and 4 affordable homes.  There was also an issue about the land price that should be taken into account, mainly about whether the appellants’ expectation of a notional 2011 value should be used or whether the County’s evidence of present day market values should be preferred.  The Inspector did not address the land value issue but concluded that it was impossible to conclude in the absence of a detailed scheme that a proposal with affordable housing would not be viable.

The decision is a useful reminder that the provisions in the G&IA are not just an open door.  On an outline scheme there is clearly an ability to redesign and refine the proposals to make it more viable.  However, this does rather beg a question.  If it is sensible to consider other options on a site where there is an outline consent, then surely it is sensible that there should also be some consideration of whether a different and viable scheme could be brought forward on all appeals?

Shale blockade will fail

We noted in our January fracking update (2014 – Year of shale for planners) that activist owners and interest groups are looking for ways to use the law of trespass to defeat shale gas exploration.  We also highlighted the likelihood that Celtique Energy’s conventional drilling proposals at Fernhurst would become a test bed for the use of statutory access rights under the Petroleum Act 1998.

Legal blockade

Lord Cowdray and others have now written to Celtique claiming to have established a ‘legalshale blockade’ around its drill site, by denying permission for subterranean drilling. Their lawyers describe it as “totally surrounded”, making fracking “impossible”.  Whilst it strengthens the short-term case for an injunction (albeit that Celtique have not sought permission for fracking), its genuine benefit is unclear.  Section 7 of the Petroleum Act allows holders of Petroleum Exploration and Development Licences (PEDLs) – like Celtique – to obtain rights needed to implement the PEDL.

These ancillary rights include surface and subterranean wayleaves as well as abstraction, drainage and construction rights.  Applications are made to the Department of Energy & Climate Change in the first instance and following its approval are dealt with by the High Court.  Unusually, the High Court deals the qualifying criteria and the compensation due where they are met. One criterion relates to efforts to negotiate with owners – and it is satisfied where they unreasonably refuse to grant rights or demand unreasonable terms.

Making life easier?

The Fernhurst owners’ “legal block” letter is intended to frustrate the purpose of the statutory PEDL regime – exploitation of domestic petroleum reserves.  As such, the letter arguably makes Celtique’s life easier, by establishing a strong case for the grant of compulsory wayleaves without the need to undertake long-winded negotiations with the owners.

Trespass changes

The Government is now looking at changing the law of trespass to reduce the scope for such disputes.  Given the existence of statutory rights for PEDL holders, it would be more transparent if they simply focussed on expediting the court process as and when needed. That has been the ultimate conclusion on Judicial Review of planning permissions.

Application credentials

A resident is also challenging the planning authority’s ability to continue to determine the Fernurst application (which does not seek approval for hydraulic fracturing), on the basis that the ownership certificates submitted with it were wrong. Applicants should be wary of submitting applications with defects in the ownership notices.

Ministry of relief

Lawyers generally hate unique solutions. No-one wants to be at the bleeding edge.

But there are some planning issues that now demand legal innovation. Cities are evolving at a great pace. More people are moving into areas that were traditionally business and leisure locations. And this is creating tensions between neighbours.

Eileen_HousePlanning has always taken a pretty laissez faire attitude to these potential battles. It is taken as a self evident truth that there is no right to a view. It gives little weight to the disruption caused by building projects. It rarely refuses consent because of the existing noise environment, despite the risk that new residents might complain.  This then jeopardises the businesses who create noise and activity. As new residents move in they complain. Even though the noise levels were acceptable for planning purposes they can still be a nuisance and lead to existing businesses being shut down.

In any sensible regime the grant of planning consent would set a higher threshold before granting consent and the grant of consent would then provide protection for existing uses — after all, new residents have moved to the problem. Unhappily in the real world this does not happen; hence the need for a unique solution.

MoSlogoThe Ministry of Sound nightclub at the Elephant & Castle is the type of use that provides character in an area. When faced with a new residential development opposite the club, Ministry was understandably concerned that the development would lead to future complaints that would inhibit their operations. Acting for the developer we agreed to grant an easement to Ministry to allow them the legal right for noise to pass through the development site.  Anyone moving into the new scheme will be aware that they have accepted certain noise levels. If they still make complaints then the local authority will be aware that the resident has already “given up” their rights and that should then influence their response to the complaint.

This is the first occasion that we know of that the mechanism has been used. Hopefully that will give others the confidence to offer the same protection and help to preserve the variety and vibrancy that makes our urban areas attractive places to live.

Stopped up

This is a cheat repeal. 

We should abolish the right for statutory undertakers to object to stopping up orders.  CLG has done some good work, following the Penfold Review, to allow applications for planning permission and for orders to stop up highways to run in parallel.  That has cut much delay from the delivery of development, but still leaves a significant risk.

signStatutory undertakers object automatically to most proposed stopping up orders.  The behaviour seems almost automatic.  Often a developer can be talking to one department about the diversion of cables but those responsible for dealing with the draft order still object.  That causes delay.  It also imposes costs, not least as new easements are negotiated (to the extent that anything can ever be negotiated with someone with an effective ransom power).

So why not just remove the power?  Utilities already have protection.  They have a right to retain their equipment.  The equipment cannot be interfered with without consent.  If consent is needed then there will, genuinely, need to be a negotiation but not otherwise.

A repeal of the right to object would cut months off the time required for securing orders.  Why not?

Resisting the duty to co-operate

Joined up thinking and co-operation within, and between, local authorities is integral to successfully delivering new development.  It makes for effective decision making and engenders greater confidence in the planning system.  Those Councils which view the “duty to co-operate” as an alien concept, have been given short shrift by the Planning Inspectorate, being sent back to the drawing board on their Local Plans where there has been a failure to engage and told to play nicely with their neighbours.  It is a culture change which is welcomed and should encourage Councils to take ownership of decisions.

A recent decision of the Local Government Ombudsman is testament to the step-change needed to the internal workings of some local authorities.  The case concerned a complaint by Mr X to the Ombudsman following a refusal of his application to the Council’s highway department to construct vehicle crossovers from the highway, across a grass verge, to his driveway.  Mr X had already obtained planning permission for the crossovers on appeal (following the Council, as local planning authority, refusing his application.)  The Council’s highway department refused Mr X’s application on exactly the same grounds as the refusal of the planning application, failing to acknowledge the planning inspector’s reasons for granting planning permission and rigidly adhering to the Council’s policy that “it will refuse” any crossovers 3 metres or more in width.  The decision highlights a dogmatic determination by Council officers (in two separate departments) to ignore the merits of individual applications, even in the context of the application of the policy by an independent third party which resulted in planning permission being issued.

The Ombudsman investigator rightly concluded that there had been maladministration in how the Council had dealt with Mr X’s application.  However, the more interesting part of the decision is the veiled criticism of the failure of the planning and highway departments to coordinate with each other in making the decision and, more importantly, make a decision which was inconsistent with the decision to grant planning permission.  The principle is found in the choice quote from R v Warwickshire County Council Ex parte Powergen Plc:

“Is it reasonable for a highway authority, whose road safety objections have been fully heard and rejected on appeal, then quite inconsistently with the Inspector’s own factual judgement on this issue, nevertheless maintain its own original view?  To my mind there can be but one answer to that question: a categoric no.”

"Let’s hope this decision, and others like it, means those few local authorities who are resistant to co-operation in any form, take warning that the “computer says no” attitude is outdated and has no place in the modern planning era.

Viability and numbers go together

Two recent articles (by Roy Pinnock) discuss the Growth and Infrastructure Act 2013 (G&IA) amendments to section 106 of the 1990 Act which now allows developers to section 106 affordable housing obligations on viability grounds.

Planning By Numbers (Estates Gazette, 17 December 2013) reviews how the challenge process will work, including the opportunity for exploiting weaknesses in the scheme by developers and ways of reducing risks for authorities.

Please see http://www.dentons.com/en/insights/articles/2014/january/20/planning-by-numbers

The second article (Planning Magazine, 17 January 2014) reviews the first appeal to take advantage of the Section 106BC appeal route (APP/W1145/Q/13/2204429) which involved plans for 151 homes at the former Holsworthy Showground in Devon. Redrow Homes achieved a reduction from 40 per cent affordable housing proportion to 23%. The local authority had failed to determine Redrow’s section 106BA application within the 28 days allowed, and Redrow appealed under section 106BC. The article highlights some of the main features of the case, including whether it did what the new provisions required.

Please see http://www.dentons.com/en/insights/articles/2014/january/20/viability-reviewed-in-appeal-test-case

Limits to growth: pre-commencement conditions

Housebuilders are up in arms about the use of conditions requiring approvals before work can start holding back delivery of consented schemes.  The 2008 Killian Pretty report recognised the problem, but too few of its recommendations were taken up. A reality check is needed though – using common sense would help more than doing away with necessary controls.

Pre-Conditions to growth

George Osborne’s Autumn Statement 2013 committed to legislating to treat planning conditions as approved where a planning authority has failed to discharge them on time (and strengthening the requirement to justify such conditions).  The Government has now announced that it will introduce these changes in April – applications will be automatically approved if councils “fail to discharge a condition in time“.

Is it important?

The issue is significant because development in breach of pre-conditions will generally make the whole of the works unlawful applying the principle in FG Whitley & Sons Co Ltd v SoS Wales (1992). In the Greyfort Properties Limited v SoSCLG [2011] case, access road works had been carried out to bank a consent before it expired without submitting the finished floor levels (as required by a pre-commencement condition).  The Court of Appeal upheld the Inspector’s view (refusing a Certificate of Lawfulness) that Whitley applied – the permission had lapsed and the work done was unlawful. 

Given the potential consequences, it is frustrating when there are delays in dealing with an increasing stream of pre-commencement approvals.  However, authorities are sometimes justifiably concerned – detail that could have been provided at the (after all, detailed) application stage is submitted just before the permission is due to expire.  Add to that the painful shortage of planning staff and no-one is happy.

Reality Check

babySome of the troublesome conditions may be trivial and unnecessary, but their presence often reflects the way that applications are approved within the timescales expected of authorities despite details that are either missing, illustrative/ indicative or poor. If submitted details, Design and Access Statements and Design Codes are up to the job, the justification for many of the conditions falls away (see NPPF 59 and 60).  As Killian Pretty recognised, “part of the answer lies in improving the quality of applications submitted in the first place“.

If the system of conditional discharges is made tougher, authorities are likely to look for more (or more acceptable) detail at the application stage.  Developers must be prepared to embrace that where they are serious about quick delivery.  LPAs may also look to use Section 106 obligations, which are likely to escape the reforms.  A more effective and proportionate response than allowing development where genuinely inadequate or unacceptable detail is submitted would be to allow appeals against pre-commencement conditions that do not re-open the whole permission to scrutiny. The process and timescales for the new Section 106 viability challenge process is a good model in that sense and would help drain the bath water without harming the baby.

Shale gale keeps blowing

David Cameron has confirmed that the Government is ‘going all out for shale’, on a site visit in the Gainsborough Trough area of Lincolnshire, in which the BBC has announced that Total is investing around £12 million as the first oil major to commit to UK fracking.

Business Rates Boost

The Prime Minster has also confirmed that the Business Rates Retention scheme in force since April 2013 (which enables authorities to retain 50% of the uplift in business rates from development they authorise) will apply to shale projects at a full 100% rate.  The policy would implement one of the recommendations from the influential May 2013 Institute of Directors report on the economic benefits from shale development in the UK and barriers to delivering it.

shaleThe IoD report envisaged a potential £3.7bn investment in UK shale and the Government is now looking to use the Business Rates regime to channel some of this locally to overcome public resistance to fracking.

The benefits for a 12-well site could be worth up to £1.7 million to the local authority responsible for collecting rates – 140% of East Lindsey District Council’s  total Environment budget or 100% of its 2013-14 budget cuts

Critics will point to the reported cost of policing Cuadrilla’s Balcombe operations last summer and uncertainties about how (and when) rates valuations will take place.

Community Benefits Still in Doubt

The missing link in the community benefits remains the lack of a clear mechanism for getting these resources down to the level where they will deliver tangible benefits and persuade local people that development can bring worthwhile investment – see our blogs on Community Interest Companies (CICs). Business Rates Retention will not benefit the (County) Minerals Planning Authorities who will determine fracking applications.  The clouding of roles feared by some is therefore unlikely to arise in practice but the money will not be a ‘Local Finance Consideration‘ for planning approval purposes unless the local authority commits itself to spending the retained rates on something with a clear planning relationship to the fracking project.

Where decision-making is co-ordinated in this way, there are some real benefits to weigh in the planning balance. It would be possible for the Government to structure the Business Rates Retention amendments so that the extra 50% (or a part of it) must be passed to a CIC or Neighbourhood Planning body (i.e. a Parish Council or Neighbourhood Forum).

Community Funds

The UK Onshore Operators’ Group has now launched its proposals for securing community benefits, which will rely on the national charitable trust UK Community Foundations to deliver £100,000 for local benefits where planning consent is granted and exploratory drilling starts.  Local priorities will be set following consultation and a local panel will be appointed to decide how the funds are spent.  It is good to see the model for local benefits being worked up, but it remains to be seen how the 1% of profits promised by the UKOOG and Government will be calculated and paid and whether the use of a national charity structure will give the level of flexibility that CICs could offer, in using community benefits to go beyond mitigation projects to wider not-for-profit and social enterprise roles.