It was hard not to laugh – and back in February 2021 laughs were in short supply. But that Handforth Parish Council viral video was also deeply depressing as a vignette of the planning system in action and hardly a recruitment drive for parish councils.
This has been another bad week for the planning system in the media.
• “Staff at Swale Council, Kent accidentally rejected or approved five applications
• Blunder was made by a ‘junior’ staff member at Mid Kent Planning Support team
• The person was trying to resolve software issues, but in doing so, five ‘dummy’ decisions, used to test the website was working, were accidentally published
• Among them included the rejection of an animal sanctuary to stay on its site
• Two Kent pubs were also given permission to be demolished or part-demolished
• A butcher’s change-of-use application in Sittingbourne was turned down
• A farm was granted planning permission with 20 conditions, listed just as 1 – 20”
It’s certainly not very clever that anyone untrained was left unsupervised with access to the business end of the local planning authority’s IT system. This has obviously caused a big legal mess. Nicola Gooch sets out the law in her 10 September 2021 LinkedIn blog post.
Older lawyers can’t help thinking in Latin, unwelcome in the courts these days but handily concise:
• Functus officio – the LPA has made its final decision (to issue the planning permission or refusal notice) and can’t re-open it.
• Administrative decisions are very rarely treated by the court as void ab initio (of no legal effect from the date they were purported to be made, even without a quashing order from the court), no matter how absurd – it takes a formal application to the court for judicial review to undo the mistake by quashing the decision, enabling it to be re-taken.
Accordingly, even with no arguments being made to the contrary by any interested parties, proceedings will need to be issued in the High Court on behalf of the council, a consent order agreed by the parties and then (usually after a wait of several weeks) rubber-stamped by the court – much money and much time wasted.
As Nicola identifies, this is by no means the first example of this sort of thing, although I do find it bewildering – was each decision not only generated by the system but then actually transmitted, without approval of a senior officer with the necessary delegated authority?There is surely a failing in the council’s internal system.
Local Government Lawyer reported in November 2020 as follows on the South Cambridgeshire examples she mentions:
“South Cambridgeshire District Council is to commence proceedings in the High Court after discovering two planning permission errors.
The local authority said one mistake had led to planning permission for an extension and annexe in Steeple Morden being issued in error. The permission was granted despite the application still being open for people to comment on.
“This planning decision, issued without the relevant authorisation, was caused by human error when the wrong box was ticked on the planning computer system,” it explained.”
“The second case saw a planning permission being issued without the accompanying conditions. It related to the landscaping, layout and other details around eight new homes in Great Abington.”
Another mistake was the subject of a ruling by the Scottish Court of Session (Outer House) in Archid Architecture and Interior Design v Dundee City Council (20 August 2013). The Council had intended to refuse an application but instead granted planning permission but with reasons for refusal. It tried to get away with simply issuing a second notice, refusing permission. However, the applicant succeeded in obtaining a declaration from the court upholding the validity of the first notice. The court decided that a decision issued by a planning authority, however legally flawed, is to be treated as valid unless and until it is overturned in court proceedings.
When taken to extremes, this does start to look absurd. Whilst of course people should be able to rely on a planning permission or refusal notice that on the face of the document looks legitimate, the concept is strained when you have a refusal notice with the reason for refusal being “No mate, proper Whack” or, in another Swale example, a planning permission issued with the conditions: “(2) Incy (2) Wincy (3) Spider”. What if he or she had issued a planning permission for development in another district – in South Cambridgeshire, say – would that also be valid until quashed?
Any argument for the “voidable not void” approach on the basis that there needs to be certainty in the system (that a permission is valid until quashed, and that there is a short deadline for legal challenge after which the permission can be relied upon as valid) begins surely to lose some legitimacy when planning permissions are quashed after many years as happened in the Thornton Hotel case I mentioned in my 7 April 2018 blog post Fawlty Powers: When Is A Permission Safe From Judicial Review or this year’s Croyde Area Residents Association, R (On the Application Of) v North Devon District Council (Lieven J, 19 March 2021) where a 2014 planning permission was quashed that had mistakenly authorised development in relation to a wider area than had been intended.
“I hope Al Qaeda bombs the f…… ugly thing”
Chaotic scenes at planning meeting as anger erupts over new West Hampstead development (Camden New Journal, 9 September 2021). The video of two local objectors screaming vitriol at Camden’s Planning Committee last night makes uncomfortable viewing. If you want to understand what the scheme actually was, perhaps read the officer’s report (from page 191) in relation to the application and in particular the plans and images from page 235 to page 257. In my view it is an excellent scheme but that’s nothing really to do with it – there was no excuse for that reaction. We are all entitled to our own views but it is depressing that individuals feel driven to scream at their locally elected representatives like this. I do not use the often unfairly insulting and counter-productive “NIMBY” insult, but you can see why people do.
By this afternoon, the Secretary of State himself was tweeting about it:
Thank you to everyone who attended our fantastic Clubhouse event last week with Graham Stallwood, Bridget Rosewell, Alice Lester and James Cross. It was a hard one to beat. This week’s will be a more informal session – do turn up if you would like to say hello – and maybe join some chat about what’s happening in the literally whacky world of planning. Link here.
Faithful reader, life’s hard enough and I’m giving you another week off from a proper blog post. However…
The High Court rulings and planning appeal decisions keep coming and it’s worth subscribing to the Town Library free weekly updates for those, including great summaries of every High Court ruling, prepared by my Town Legal colleagues.
I know I go on about clubhouse but do join one of our Planning Law Unplanned sessions if you can. I suppose that in tone it’s a cross between a live podcast (there’s no subsequent recording – miss it and it’s gone), a radio phone-in show and an after-work chat in the pub around a (large) table. Clubhouse recently upgraded their audio system to what they call spatial audio and if you listen now on earphones on an iphone or ipad you’ll notice that there is indeed the sense that you are in a room with the voices coming from different directions, as if around the table.
This Tuesday’s (7 September 2021, 6 to 7.15 pm) is genuinely unmissable: “Planning application/appeal timescales – tell us your tales”. It follows on from my last blog post, How Long Has This Been Going On and features the following special guests: Graham Stallwood (director of operations at The Planning Inspectorate), Bridget Rosewell (chair of the 2018 independent review into planning appeal inquiries), Alice Lester (director regeneration at Brent Council) & James Cross (strategic sites project planner, Arun District Council).
Timing is all, so they say. What are people’s current experiences of “the system”, good & bad?
In relation to appeals, PINS these days publishes excellent data but where are the pinchpoints that people experience in practice (without referring to specific cases)? Post lockdown, are we now on our way back to the improved timescales for appeal inquiries that were being achieved as a result of the Rosewell reforms? What about hearings and written reps appeals? How are we finding the move back from wholly screen-based events?
In relation to applications, what approaches by applicants and/or LPA can help avoid undue delays? How can we speed up negotiation of section 106 agreements? What is the role for pre-app discussions and early public engagement?
Please join us for a good-natured, positive but hopefully probing session. You are free just to listen or to participate in the discussion. Indeed we would love to hear your tales, of woe or joy! Link to app here.
Finally, clubhouse obviously is a platform for all sorts of discussions on all manner of topics. Nothing to do with work – any reference to planning or law, or indeed whatever work you do, is entirely banned – but tomorrow evening (Sunday 5 September, 8 pm) a few of us are hosting the third in an occasional series of events I’ve called Sound Recommendations, which is basically just chats about music, around a theme, as a result of which we put together a spotify playlist of what’s been mentioned (search for Sound Recommendations #1 and #2 on spotify). Tomorrow night’s theme is: “GIGS: first, best, last, next”. Do join us for that one too! Link here. (And if you’re only reading this after the event you’ll have to console yourself by searching for the Sound Recommendations #3 playlist).
Maybe next week I’ll get round to a proper post again….
Time is money. Time is unmet needs. Time is unrealised public benefits.
I just wanted to capture some of the current, frankly depressing, data that is out there on application and appeal timescales.
The purpose of this post is to underline that there is a significant problem to be addressed. What to do about it will be for another post – there is certainly much that can be done that does not require (1) legislation (2) additional resources or (3) any procedural shortcuts.
A piece from yesterday’s Planning daily online: Council signs off 2,380-home urban extension almost four years after committee approval (£). Four years is certainly going it some but I can confirm from constant first-hand experience how difficult it can be to move a project from resolution to grant to permission at any speed. The larger or more complex the project, the longer those negotiations over the section 106 agreement and associated aspects can end up taking.
My colleague Lida Nguyen has been looking at the position in London. She has looked at all applications for planning permission which were referred to the Mayor between 3 January and 11 December 2020, so applications of potential strategic importance as defined in the Mayor of London Order 2008 and, for those which were then approved by the relevant borough (without intervention by the Mayor or secretary of State), she has looked at the average time that the application took from validation to the borough’s resolution to approve and from the borough’s resolution to approve to permission being issued. Discarding a few anomalous cases, this left 88 to be analysed.
In my humble view the statistics are appalling, but not surprising:
Application submission to resolution to approve
Median: 228.5 days
Mean: 269 days
Resolution to approve to grant of permission
Median: 218.5 days
Mean: 259 days
It’s rather deflating for applicants and (when you stand back from the detail) surely absurd that resolution to grant in reality only marks the halfway point to a permission in relation to significant projects in London. Wouldn’t it be a start for boroughs, the Mayor and those acting for applicants to set a target of halving each of those figures and agreeing the necessary steps to achieve that reduction?
My 25 May 2019 blog post Pace Making: Progress At PINS reported on Bridget Rosewell’s recommendation, adopted by the Planning Inspectorate, that inquiry appeals decided by an inspector (i.e. not recovered by the Secretary of State) should be decided within 24 weeks of receipt and that where the Secretary of State is to be the decision-maker, inspectors’ reports should be submitted to the Secretary of State within 30 weeks of receipt of the appeal. Initial progress was really impressive – until the first lockdown struck in March 2020. After a slow start (see my 2 May 2020 blog post There Is No E In Inquiry), PINS of course eventually, to the massive credit of all involved, embraced virtual hearings, inquiries and examinations and the risk of an impossible backlog was averted. However, it is clear from the latest Planning Inspectorate statistical update (19 August 2021) that there is still much work to do:
“The mean average time to make a decision, across all cases in the last 12 months (Aug 20 to Jul 21), was 27 weeks. The median time is 23 weeks.
The median time to decide a case decreased by 0.6 weeks between June and July 21, with the median being 21.4 weeks.
Median timeliness by procedure type is shown in the summary table below.
Performance since April 21 against the median measure has only varied by 0.7 weeks, between 21.4 weeks and 22.1 weeks. Performance had been improving between November 20 and March 21. For inquiries, in the last two months, cases have taken longer to decide as a result of very old enforcement inquiry cases being decided.
Enforcement decisions made in the last 12 months had a median decision time of 34 weeks. Looking at the annual totals, the median and mean time to decision for specialist decisions have been broadly the same as for enforcement decisions, and longer than the median for planning decisions. Since February 21 there has been a change in this trend, with Specialist cases being quicker than Enforcement.
The median time for planning appeals decided by inquiry under the Rosewell Process over the 12 months to July 21 is 35 weeks. This is quicker than other types of casework decided by inquiry.”
Whilst the extent of statistical information provided these days is welcome, it is difficult sometimes to track the figures through the different tables so as to work out what the likely timescale outcome for a prospective appellant will turn out to be. I have also looked in vain within the statistics for any information as the time being taken between appeal receipt and validation – a traditional black hole when it comes to appeal timescales. I’m also struggling to see any breakdown as to what the “Rosewell” inquiries were (35 weeks average) as compared to inquiries overall (79 weeks!).
That overall 27 weeks average is deceptively encouraging for anyone looking at anything other than a written representations appeal. Because those appeals make up 95% of the total of course they massively skew the mean figure. But even then, although not reflected in these statistics, my own anecdotal impression is that validation of appeals which proceed by way of written representations or hearing is very slow indeed, raising a large question mark over the overall statistics. Possibly something to do with the focus on Rosewell inquiry appeal targets. Am I being unfair? What solid information on this is there out there? If there isn’t any, why not??
In order to meet Rosewell targets, surely on that last table the 90th percentile needs to come down from 66 weeks to 24 weeks – and to be measured from receipt of appeal rather than validation?
Again, as with timescales for major applications in London, with appeal inquiries, surely we are looking at the need to more than halve current timescales?
All tables above have been taken from PINS documentation, for which thanks.
Simon Ricketts, 20 August 2021
Personal views, et cetera
Planning Law Unplanned is having a summer break this week, before returning at 6pm on Tuesday 31 August for somewhat of a BECG/DP9 special, London Elections 2022: Politics Meets Planning. Join the club here for notifications of this and future clubhouse Planning Law Unplanned events.
To what extent is human safety, and the safe construction of buildings, a matter for the planning system? It can be difficult to determine and this blog post just scratches the surface – there’s a book to be written by someone (not me!) on the subject.
Last week the High Court handed down judgment in Valero Logistics UK Limited v Plymouth City Council (Thornton J, 30 June 2021). Valero and another company operate distilled fuel storage depots, the closest of which is approximately 125m away from a helipad within the grounds of Victoria House, Plymouth. “The depots are “establishments” regulated under the Control of Major Accident Hazards Regulations (SI2015/483) (‘the COMAH sites’) because of the intrinsic dangers to human health and the environment which the products handled and stored there present. Highly flammable fuel is regularly unloaded at a dock approximately 400 metres south east of the site and conveyed by over-ground pipes to the Claimants’ depots, where it is stored in above-ground tanks.”
They were challenging the council’s grant of planning permission for commercial use of the helipad which is currently only used for purposes ancillary to use of the residential use of the house. They had the following five, inter-related, grounds of challenge:
“Ground 1 – the Defendant failed to consider a material consideration by not considering the risks posed by the development to the COMAH sites.
Ground 2 – the Defendant misunderstood the “fallback” position and, by relying on that misunderstanding, it skewed the process by which it made the decision.
Ground 3 – the Defendant acted irrationally by relying on the existence of other regulatory regimes in deciding to grant permission.
Ground 4 – the Defendant erred in law by granting permission to an application that conflicted with the development plan when no other material considerations justified such a decision.
Ground 5 – the decision was irrational.
The Claimants point to the potentially catastrophic consequences of a helicopter crashing onto highly flammable fuel and say that what unites the grounds is a decision-making process and decision that abdicates responsibility for the dangers created by the proposed development. In particular, the Defendant conspicuously failed to engage with the scale of the risk posed to the COMAH sites by commercially operated helicopters flying at low heights over large quantities of highly flammable fuel. To the extent the Defendant recognised any risk, it sought to off-load it onto the Civil Aviation Authority (CAA) even though the CAA did/does not have the mandate or the expertise to evaluate the consequences on the ground of crashing aircraft or to take land-based decisions accordingly. These remain the safety responsibilities of others including the Defendant who is said to have been, and remains, in denial about this.”
The claim failed on all grounds. I want just to point to the summary by Thornton J as to the approach to be taken to safety and other matters covered by other regulatory regimes:
“Where a regulatory regime exists to deal with an issue raised by a planning application, it is open to a Local Planning Authority to place reliance upon the effective operation of that regime in determining an application for planning permission. However, the Local Planning Authority cannot simply ignore the issues in question. It must satisfy itself that the other regulatory regime is capable of regulating the relevant issues..”
The safety concerns were indeed considered by the council’s planning committee. As summarised by the judge:
“It is clear from the [discussion at the planning committee] that the Planning Officer and Members recognised that the risks to the COMAH sites from a helicopter crash were a principal issue in their consideration of the planning application. Extensive consideration was given to the risks and their mitigation including: how the helicopter is operated (under regulatory controls imposed by the CAA); who operates it (professional pilots); type and class of helicopter (Performance Class 1); and where the helicopter is flown (precise flight paths to and from the Site, mainly over water and strictly enforced). In addition, the Members ensured direct communications between the Site Operator and COMAH sites (as well as the Harbour Commissioners) prior to flights. The Committee understood correctly that it must exercise its judgment to assess the risks of the proposal having taken account of the views of the HSE and Civil Aviation Authority. The planning judgment reached was that the current ancillary ad hoc private helicopter use from the Site was less safe than the increased regulation over and greater professionalism of, commercial flying operations from the Site.
The Claimants criticise the Committee’s understanding of risk analysis but they construe risk assessment and minimisation too narrowly to assert that the risks to the COMAH sites cannot be accounted for unless specifically addressed. This is to ignore the broader set of technical and organisational mitigation to reduce the risk of a helicopter crash. The Claimants submit that the Defendant should itself have gone to the helicopter accident statistics and done its own risk assessment to test the 1 in a billion chance of catastrophic helicopter failure set out in the Interested Party’s risk assessment but, as the Planning Officer said during the debate, the Planning Committee are not specialist risk assessors. The Committee heard representations from Valero on the safety risks at the Committee meeting. The Claimants’ submissions seek to hypercritically retest the merits of the decision. It is correct to say that the officer erred in reporting the risk of failure to the Committee as 1 in 9 billion not 1 in 1 billion. The risk was however correctly reported in the Officer’s written report. It is well established that the reports of Planning Officers must not be subject to hypercritical analysis. The same must apply with even greater force to the oral discussion at a Committee meeting where an officer is responding on his feet to questions from members without the luxury of contemplation allowed for in the production of a written document. It is apparent from a review of the transcript of the whole meeting that the Officer and Committee members understood (and were concerned) about the nature of the risks posed by the proposed development to the COMAH sites and further understood that it was ultimately a matter of planning judgment as to whether the risks and mitigation measures (general helicopter technical and organisational requirements, as well as specific COMAH site requirements and regulation by the CAA) were acceptable. They formed the view that they were acceptable, which was a view they were, in my judgment, entitled to come to on the evidence before them.”
So, a decision maker can rely on the effective operation of another regulatory regime, as long as it satisfies itself that the other regulatory regime is capable of regulating the relevant issues.
(Aside from issues of safety and major accidents, the “overlap with other regulatory regimes” question arose in R (Squire) v Shropshire Council (Court of Appeal, 24 May 2019) which I covered in my 1 June 2019 blog post Chickens**t EIA, where a planning permission was quashed on the basis that the decision maker had wrongly concluded that odour and dust issues arising from the proposed spreading of manure would be adequately policed by the Environment Agency via its IPPC permitting regime).
The following complications arise:
First of all, quite an onus is placed on the decision maker, given how complex it is to ascertain the nature of risks arising and how the regulatory regime operates, in the context of the possibly tragic consequences of making the wrong decision – and often in the face of vociferous detailed objections.
Secondly, the question of what is a material planning consideration is famously amorphous and over time issues as to building safety have been drawn into the planning system, which could be dealt with by way of other regulatory systems (or which are dealt with, but at a much later stage).
At a local level, think for example of some central London authorities’ detailed controls over subterranean development (see my 5 December 2016 blog post First World Problems: Basements).
At a national level, in response to the Grenfell tragedy and following commitments made in Building a Safer Future: Proposals for Reform of the Building Safety Regulatory System in the light of Dame Judith Hackitt’s Independent Review of Building Regulations and Fire Safety the Government has made the Town and Country Planning (Development Management Procedure and Section 62A Applications) (England) (Amendment) Order 2021, which introduces a requirement for a fire statement to be submitted with applications for planning permission for development involving a building (1) contains two or more dwellings or educational accommodation and (2) contains 7 or more storeys or is 18 metres or more in height. The fire statement is published on the planning register and the Health and Safety Executive must consulted before the grant of planning permission involving a high-rise residential building in certain circumstances. The new regime, known as “Planning Gateway One”, applies to planning applications made from 1 August 2021 onwards and the Government’s Planning Practice Guidance has been updated. “The changes are intended to help ensure that applicants and decision-makers consider planning issues relevant to fire safety, bringing forward thinking on fire safety matters as they relate to land use planning to the earliest possible stage in the development process and result in better schemes which fully integrate thinking on fire safety.”
This is obviously prudent, rather than for vital safety issues to be left for consideration through the Building Regulations and other requirements at a later stage in the process. But, again local planning authorities are increasingly being drawn into matters outside their traditional remit. What level of scrutiny will they need to give to the statements and on what basis are they justified in requiring further information, even if the HSE is satisfied?
The judge in Valero previously presided over another high profile case as to the extent of a local planning authority’s duties in relation to public safety. In Crest Nicholson Operations Limited v West Berkshire Council (Thornton J, 12 February 2021) Crest and others challenged West Berkshire Council’s designation of a Detailed Emergency Planning Zone (“DEPZ”) under the Radiation (Emergency Preparedness and Public Information) Regulations 2019, which were “part of an international, EU and national response to the meltdown of three reactors at the Fukushima Daiichi nuclear power plant in Japan in March 2011 following an undersea earthquake.”
“One of the key changes to emergency planning, reflected in the Regulations, is to require risk assessment and planning for events which have a low likelihood of occurrence but high impact in the event they do occur; as with the Fukushima disaster. Another change, specific to the Regulations, concerns a shift in responsibility for deciding on the extent of a geographical zone in which it is proportionate to plan for protective action in the event of a radiation emergency. The zone is referred to in the Regulations as a ‘Detailed Emergency Planning Zone’ (DEPZ). Responsibility used to lie with either the Office for Nuclear Regulation or the Health and Safety Executive but now rests with the relevant local authority, who must designate the zone on the basis of a recommendation from the site operator.
On 12 March 2020, West Berkshire District Council designated the DEPZ around the Burghfield Atomic Weapons Establishment with a minimum radius of 3160 m from the centre of the site. The site is of national strategic importance. Nuclear weapons are assembled, maintained and decommissioned there. Under the previous regime, the DEPZ was based on a minimum radius of 1600 metres. The extension covers much of the 700 hectares of land belonging to the Claimants and previously earmarked for the development of 15000 homes.”
“The Claimants contend that the rationale for the new and radically extended DEPZ on a recommendation by the privately run operator, AWE, is simply not known. The only publicly facing document contains, at best, a partial rationale for the designation, which is insufficient, as a matter of law, to meet the requirements of the Regulations. The document was not made available to the public until after the DEPZ was designated which was procedurally improper and in breach of statutory requirements. Regulatory oversight of the designation process has been deficient.”
The challenge failed. Those seeking to second-guess decisions that a public authority has reached on matters that fall within the authority’s technical expertise definitely face an uphill struggle:
“The Courts have recognised the need for judicial restraint where the issue under scrutiny falls within the particular specialism or expertise of the defendant public authority. In R(Mott) v Environment Agency Beatson LJ observed that “a regulatory body such as the [Environment] Agency is clearly entitled to deploy its experience, technical expertise and statutory mandate in support of its decisions, and to expect a court considering a challenge by judicial review to have regard to that expertise” (§63). In this case the defendant public authority is the local authority which does not itself hold the technical expertise itself to assess AWE’s work. Nonetheless it drew on assistance and advice from the ONR and PHE. I consider this to be akin to the position where the defendant public authority relies on experts, which the Courts have acknowledged entitles the public authority to a margin of appreciation (relevant that the defendant “had access to internal expert advice and the views of external bodies” in deciding whether there was material before the defendant on which it could rationally be decided that the approval should be made: R(Christian Concern) v Secretary of State for Health and Social Care  EWHC 1546 (Admin)(Divisional Court) at §30 (Singh LJ)) (see also “Where a screening decision is based on the opinion of experts, which is relevant and informed, the decision maker is entitled to rely upon their advice”; Lang J in R (Swire) v Secretary of State for Housing Communities and Local Government  EWHC 1298 (Admin) at §61).”
This all of course places much power in the hands of public bodies such as the Health and Safety Executive, Environment Agency, Public Health England and Office for Nuclear Regulation.
In practice not only does it become difficult for local planning authorities to do anything other than rubber-stamp the advice that they receive given that to do so without sufficient reasoning might not just render their decision liable to challenge but they also need to be aware of the potential for liability in common law negligence to arise. After all, in Kane v New Forest District Council (Court of Appeal, 13 June 2001) it was held that a pedestrian injured by a car when he had left a footpath to cross a road had a real prospect of success in a negligence claim against a local planning authority, given that the authority had required the path to be provided in relation to a development but had not done anything to make sure that the crossing point would be visible to drivers.
The court said this: “it was [the local planning authority] who required this footpath to be constructed. I cannot accept that in these circumstances they were entitled to wash their hands of that danger and simply leave it to others to cure it by improving the sightlines. It is one thing to say that at the time when the respondents required the construction of this footpath they had every reason to suppose that the improvements along The White Cottage frontage would ultimately allow it to be safely opened and used: quite another to say that they were later entitled to stand idly by whilst, as they must have known, the footpath lay open to the public in a recognisably dangerous state.”
The NPPF simply has references to the desirability of “safe communities” and “safe places” and these specific passages:
“Local planning authorities should consult the appropriate bodies when considering applications for the siting of, or changes to, major hazard sites, installations or pipelines, or for development around them.” (paragraph 45).
“Planning policies and decisions should promote public safety and take into account wider security and defence requirements by:
a) anticipating and addressing possible malicious threats and natural hazards, especially in locations where large numbers of people are expected to congregate. Policies for relevant areas (such as town centre and regeneration frameworks), and the layout and design of developments, should be informed by the most up-to-date information available from the police and other agencies about the nature of potential threats and their implications. This includes appropriate and proportionate steps that can be taken to reduce vulnerability, increase resilience and ensure public safety and security; and
b) recognising and supporting development required for operational defence and security purposes, and ensuring that operational sites are not affected adversely by the impact of other development proposed in the area.” (paragraph 95).”
As I say, I’ve only scratched the surface of an important subject.
Simon Ricketts, 3 July 2021
Personal views, et cetera
This week, from 6 to 7.15 pm on Tuesday 6 July we have another big clubhouse Planning Law Unplanned event, We Need To Talk About Green Belt, leading off with contributions from barristers Jonathan Easton and Zack Simons, who will give a first-hand insight into their recent Bolton and Colney Heath inquiry decisions. Free invite to the app and event here.
Certificates of lawfulness are very useful, but care is still needed, as two recent cases illustrate.
But first, to explain about the two types of certificate provided for under the Town and Country Planning Act 1990 and the consequent jargon about CLEUDs and CLOPUDs.
The “certificate of lawfulness of existing use or development” (“CLEUD”) procedure, under section 191 of the 1990 Act:
“(1) If any person wishes to ascertain whether—
(a) any existing use of buildings or other land is lawful;
(b) any operations which have been carried out in, on, over or under land are lawful; or
(c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful,
he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter.”
“(4) If, on an application under this section, the local planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operations or other matter described in the application, or that description as modified by the local planning authority or a description substituted by them, they shall issue a certificate to that effect; and in any other case they shall refuse the application.”
“(6) The lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed.”
The “certificate of lawfulness of proposed use or development” (“CLOPUD”) procedure, under section 192 of the 1990 Act:
“(1) If any person wishes to ascertain whether—
(a) any proposed use of buildings or other land; or
(b) any operations proposed to be carried out in, on, over or under land,
would be lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use or operations in question.”
“(2) If, on an application under this section, the local planning authority are provided with information satisfying them that the use or operations described in the application would be lawful if instituted or begun at the time of the application, they shall issue a certificate to that effect; and in any other case they shall refuse the application.”
“(4) The lawfulness of any use or operations for which a certificate is in force under this section shall be conclusively presumed unless there is a material change, before the use is instituted or the operations are begun, in any of the matters relevant to determining such lawfulness.”
Section 193 (7) “A local planning authority may revoke a certificate under either of those sections if, on the application for the certificate—
(a) a statement was made or document used which was false in a material particular; or
(b) any material information was withheld.”
There is discussion about the distinctions between the two procedures, CLEUD and CLOPUD, in the Government of the Republic of France v Royal Borough of Kensington & Chelsea (Court of Appeal, 12 June 2017) but basically a CLEUD certifies that the development that has already taken place was lawful (i.e. had the benefit of any necessary planning permission) and a CLOPUD certifies that proposed development would be lawful (i.e. would not require any further planning permission).
Either certificate may be revoked by a local planning authority if it was granted on the basis of false information or if material information was withheld. CLOPUDs carry the additional risk that they may no longer be able to be relied upon as determinative of lawfulness if “there is a material change, before the use is instituted or the operations are begun, in any of the matters relevant to determining such lawfulness”.
R (Ocado Retail Limited) v London Borough of Islington (Holgate J, 7 June 2021) concerned the revocation by Islington Council of a CLEUD granted on 26 April 2019 to Telereal Trillium. The effect of the CLEUD was to certify that four of Telereal’s units on an industrial date were in lawful use for storage or distribution purposes, given that they been used for those purposes for at least the last ten years in breach of a condition on a previous planning permission. As is usually the case, the certificate application had been determined without public consultation and by delegated powers. Only when Ocado then made a planning application for works to the property so as to be able to use it as one of their distribution facilities did local residents find out that the certificate had been issued. They provided information to the council which caused it to make the revocation order, relying on the following reasons set out in an officer’s report:
“(i) Telereal’s application had relied on units A-D as “four interlinked units” forming a single planning unit, without mentioning a lack of interconnection between units B and C (paras. 11, 13 and 19); (ii) Telereal had not referred to a statement in the 2011 planning application that units C-D were unused at that time and, being surplus to requirements, had been marketed since 2006 as a separate unit. Telereal had not produced photographs taken in 2011 showing the empty units. This information contrasted with the false statement in the application that between 1992 and 2013 units A-D had been fully operational as a warehouse and also with the reliance placed upon photographs taken in 2006 produced by Mr. Molony. This was not a case where units had simply not been used to capacity (paras. 11, 17 and 18); (iii) The statutory declaration had been false in stating that since 1992 the whole site had been in use as a warehousing/storage depot, that the use had been continuous throughout, and that the photographs submitted were “typical of the uses” (para. 18); (iv) The statutory declaration had withheld the fact that Mr. Molony, who was professing to give first-hand evidence, had not visited the site during Royal Mail’s lease and so could not attest to its use during that period (para.18); (v) The application had failed to refer to Royal Mail ceasing to use the premises by, at the latest, 2015 (paras. 11 and 17); (vi) The application and the decision in 2019 had proceeded on the incorrect legal basis that the issue was whether there had been a 10-year period of continuous use in breach of condition at any time in the past, without that lawful use being subsequently abandoned or suspended. Instead, the law had been correctly stated in Ellis (para.22). In any event, even applying “the wrong legal tests” relied upon by Telereal, the applicant had been required to provide an accurate factual account of the use over time. The false statements and withholding of information were still material to that issue (para.23); (vii) The false assertion about the interlinked nature of units A-D, as well as the lack of use and the separate marketing of units C and D, were relevant to the identification of the correct planning unit (para.28); (viii) On the exercise of the discretion to revoke the CLEUD, the legislation assumes the provision of “correct and complete material information.” Had the false statements not been made and/or material information withheld, Islington “would have been alerted to the need to carry out further investigations in particular as to the planning unit” and “could have come to a different decision” (para.8).
Ocado challenged the revocation by way of judicial review on a series of grounds, a number of which raise interesting and difficult planning law issues, but for the purposes of this blog post it is sufficient to say that the claim failed. Holgate J held that the council was within its powers in deciding to revoke the certificate on the basis of applying the test in section 193 (7).
It is an important judgment for anyone dealing with certificate applications, with some helpful judicial pointers.
As to the drafting of a statutory declaration in support of a certificate application:
“Care needs to be taken in the drafting of any statutory declaration in support of an application for a certificate under s.191 (or s.192). Such a document is intended to have a formal and solemn status in a non-judicial process where oaths are not administered. It is an offence for a person knowingly and wilfully to make a statutory declaration containing a statement which is false in a material particular (s.5 of the Perjury Act 1911). This offence is “triable either way” and so there is no specific time limit on the bringing of a prosecution. Whether or not a statutory declaration is used to provide evidence to a local planning authority, s.194 makes it an offence for a person, for the purposes of obtaining a decision on an application under s.191 or s.192, to make a statement knowingly or recklessly which is false or misleading in a material particular or, with an intent to deceive, to use any document which is materially false or misleading or to withhold material information. In s.194(3) Parliament has expressly disapplied the normal 6-month time limit in s.127 of the Magistrates’ Courts Act 1980 for the bringing of a prosecution in respect of a summary only offence. Section 194(3) is all of a piece with the power of revocation in s.193(7), which is exercisable at any time after the grant of a CLEUD.
To enable an authority to assess the weight to be placed upon a statutory declaration or witness statement, it is good practice for the author to make plain which matters are within his own personal knowledge and, unless it is obvious, how that knowledge was obtained. For each matter outside his own knowledge, he should identify the specific source relied upon. These are essentially the principles applied to witness statements in civil litigation (CPR PD32 para.18.2) and it is difficult to see why the approach should be any less rigorous in the context of s.171B where a declaration may be dealing with continuity over a long period of time.”
As to whether certificate applications should be publicised:
“It is beneficial to the quality of decision-making on s.191 applications, which deal with past events, that persons or bodies with relevant information on the grounds for seeking a CLEUD should be able to be involved, whether supporting or opposing an application. If they are not, there is potentially an increased risk of any certificate granted becoming the subject of an application for judicial review, or revocation under s.193(7), with consequential delays for a landowner wishing to rely upon that decision. If, on the other hand public participation results in the refusal of a CLEUD, the applicant is entitled to pursue the matter on appeal, where the evidence can be examined and tested.
It could be said to be unsatisfactory that whether consultation takes place should depend upon the exercise of discretion by individual planning officers, rather than there being a uniform national procedure. Similar concerns were raised by Collins J in Sumption v London Borough of Greenwich  1 P&CR 20 at . The point is illustrated by paragraph 008 of the relevant part of the National Planning Practice Guidance, which states that “it may be reasonable for a local planning authority to seek evidence from other sources e.g., parish councils or neighbours, if there is good reason to believe they may possess relevant information about the content of a specific application”. The difficulty is that an authority is unlikely to be able to identify all situations in which members of the public have something material to contribute, either on the decision whether to grant a certificate or the precise scope of any certificate.”
As to the extent of the power to revoke a certificate:
“A CLEUD or a CLOPUD may only be revoked by a local planning authority on the grounds set out in s.193(7). The power of revocation may not be used, for example, because the authority wishes to revisit the merits of the application, or has changed its mind about the findings of fact it has made or the inferences or conclusions it has drawn from the material submitted.”
As to other matters to take into account in deciding whether to revoke:
“By way of example, the local planning authority might take into account the effect of revoking the certificate on affected landowners, particularly if time has elapsed and successors in title demonstrate the harm they would suffer. In that event, it could also be relevant to consider whether a successor in title was involved in, or aware of, the application for a certificate, particularly if it intended to rely upon any certificate granted. Where a local authority has reason to conclude that material information was deliberately withheld at the application stage, or that there has been material concealment of information after the certificate was issued, those matters could be taken into account as weighing in favour of revocation. Although the planning merits of a development or a legitimised breach of condition are irrelevant to whether sub-paragraphs (a) or (b) of s.193(7) are satisfied, a local authority may have regard to that aspect when exercising its discretion whether to revoke a certificate. But it is entirely a matter for the authority whether to consider planning benefits or harm at all and, if so, to what extent, subject only to review on the grounds of irrationality.”
I mentioned the additional risk, with CLOPUDs, that they lose their effect if there is a material change, before the use is instituted or the operations are begun, in any of the matters relevant to determining the lawfulness of the proposed development. There was discussion about this in Croyde Area Residents Association) v North Devon District Council (Lieven J, 19 March 2021).
The case concerned an application for judicial review to quash the grant of planning permission on 27 January 2014 for the use of lodges, static caravans and touring caravans at Ruda Holiday Park, Croyde, Braunton Devon. The judge allowed such a late challenge to be brought, applying the principles in R (Thornton Hall Hotel Ltd) v Wirral Metropolitan Borough Council (Court of Appeal, 30 April 2019) (covered in my 18 May 2019 blog post Slow Claim Coming: Limiting JRs) but much of the discussion in the case concerned a CLOPUD which was subsequently granted on appeal on 21 February 2020 once a dispute had arisen as to the extent of land which had the benefit of the planning permission, due to a mistake in the way in which the boundaries of the application had been shown (“…roughly 22 hectares of land were included within the red line which before 2014 had no permission for caravans or lodges to be stationed”).
There is an absolute statutory bar on challenging the validity of certificates granted upon appeal after six weeks but challenges can of course be brought to planning permissions granted by local planning authorities outside that six weeks period (on the principles set out in that Thornton Hall Hotel case). That was why this was just a challenge to the January 2014 permission. The land owner, represented by James Maurici QC, sought to argue that to allow a late challenge to the planning permission, as argued for by the claimant, represented by Richard Turney, would undermine the absolute bar on any legal challenge to the CLOPUD. The judge disagreed:
“I am concerned that Mr Turney’s argument does result in the undermining of the LDC, and therefore might be said to undermine the purpose of the statutory provision. However, in my view there are two answers to this. Firstly, it is clear from Challinor and from s.192(4) that the LDC does not create absolute certainty of the lawfulness of the use going forward in any event. The statute envisages that there may be a material change which removes the certified lawfulness and I see no reason why the subsequent quashing of a planning permission should not be such a material change. Secondly, the mischief that Mr Maurici relies upon can in my view be dealt with by the exercise of the court’s discretion not to quash if on the facts of the case that is the appropriate response. It would be a highly unusual, if not exceptional, situation where the court would quash a planning permission where the effect was to remove the benefit of an LDC. As I explain below, I consider this to be such an exceptional case. However, in the vast majority of cases the existence of the LDC will be an overwhelming reason not to quash the planning permission.”
So the judge assumes that the quashing of the planning permission will amount to a material change in a matter that was relevant to determining the lawfulness of the development certified in the CLOPUD. It is not clear from the judgment whether the development described in the CLOPUD had subsequently already been started – that would of course preclude the operation of section 192 (4). (NB I understand that permission to appeal to the Court of Appeal has been sought).
– Be scrupulously accurate when submitting any application for a CLEUD or CLOPUD, and do not withhold any material information. Otherwise, it may come back to bite you or your successor, by operation of section 193 (7).
⁃ In relation to CLOPUDs, be wary of any potential material changes that may come to undermine your certificate. You are at risk until “the use is instituted or the operations are begun”.
Simon Ricketts, 12 June 2021
Personal views, et cetera
It was a busy Clubhouse Planning Law Unplanned week! Many of you will have tuned into our session on Tuesday in relation to the Lichfields Taking Stock report and/or Thursday’s event arranged at about eight hours’ notice when Duncan Field and Zack Simons led a session on the HCLG Committee’s report on the future of the planning system. This Tuesday 15 June at 6pm we have another amazing session, this time about starting new consultancies, firms and practices, with a series of founders’ stories, including Roger Hepher (hgh Consulting), Paula Carney (CarneySweeney), Kelly Ryder (The Planning Lab), Mark Gimingham (i-Transport), Claire Dickinson (Quod), Rachel Naylor & Abbey Musker (Trium Environmental Consulting LLP ) and tax specialist Mitch Young (Fusion Consulting Ltd). Join us! Invite to app and event here.
Choiceplace Properties Limited v Secretary of State (Dove J, 27 April 2021) amounts to a short and sharp lesson for applicants and their advisers: make sure your application plans are accurate, not just in relation to your development proposals but as to the relationship of the proposals to the existing streetscape or landscape, particularly if a condition of the permission requires that development is to be carried out in accordance with those (scaled) plans.
Planning permission had been granted for a small block of flats to be built in north London. Condition 1 required the development to be carried out in accordance with a set of approved plans. The set included drawing “P.04”, street elevations”.
This is an extract from the plan:
To quote from Dove J:
“Not long after the permission had been granted the claimant mobilised in order to implement the development. In December 2018, the claimant was advised by the architect that it had retained to prepare detailed construction drawings that the street scene drawing P.04 was inaccurate. In essence, the drawing, which was one of those listed in condition 1 along with the other drawings forming part of the pack accompanying the application, was in error in purporting to show that the proposed development would have a ridge height lower than the neighbouring building 159 Holden Road, when in fact the ridge height of the proposed building would be higher. Whereas the street scene in drawing P.04 showed the buildings stepping down in height from 159 via the proposal to 157, where the ridge height of 157 Holden Road was shown to be lower than the application site proposed building, in fact the proposed building was taller than both of them.”
I suspect that it is quite unusual that an error such as this is spotted pre-construction. The stakes are even higher for all concerned if the discrepancy is spotted at a later stage.
The local planning authority, London Borough of Barnet, took the position that the permitted development could not be lawfully implemented. The parties waved opposing counsel’s opinions at each other. The applicant, Choiceplace, made an application for a certificate of lawfulness of proposed use or development under section 192 of the Town and Country Planning Act 1990 to seek to make good its position. The application was refused by Barnet and the subsequent appeal was dismissed by an inspector.
“In my view the starting point is that when interpreting a condition it should be asked what a reasonable reader would understand the words to mean. In this case it clear to me the development should be built in accordance with the plans. At its simplest this is impossible because to build it in accordance with P.03 and P.06 the building will not look like the building shown in P.04. In other words the plans are inconsistent. The condition doesn’t require the development to be in accord with some of the plans, or parts of the plans, but with the approved plans, and I think it reasonable to imply the word “all” there, again on the basis that is what an ordinary reading of the condition implies.
Starting from this point, it could be argued that the P.04 is merely illustrative, the buildings either side could change shape or size or even be demolished, but that seems to me to be rather missing the point. Firstly, P.04 is clearly not illustrative, it is not a simple sketch purporting to show a view, but is an allegedly scale drawing with the heights of the neighbour at No 159 drawn on to specifically compare to the proposal. Secondly, whether the neighbours can change is irrelevant. The drawing shows the proposed building in a relationship to the neighbours at the time the application was made regardless of any theoretical future changes. That relationship should have been replicable on site on the date the permission was granted and it was not.
If we delve further into the extrinsic evidence to see if there is anything else to suggest that reliance on P.04 would be excessive or in some way unreasonable then it becomes clear, for the reasons given in the Council’s opinion, that the streetscene drawing was important in the determination of the application, which was only allowed by the committee by a narrow margin. Furthermore it is only by detailed analysis of various spot heights across several of the drawings that the errors are revealed. The Council should be able to rely on accurately scaled drawings, especially when the drawing in question is important to determining the acceptability of the proposal.”
Dove J agreed with the inspector:
“In my judgment, there is no reason why the depicted heights of the existing buildings should be regarded as illustrative or somehow excluded from the requirements of condition 1 on the planning consent. As was pointed out during the course of argument, a relationship between a proposed development and the existing height of either adjacent structures or indeed adjacent ground levels is a matter to be accurately depicted on plans accompanying planning permission for good reason. It is at the very least to be assumed to be an accurate depiction, in the absence of any specific text on the drawing indicating that elements of it are not to scale. The Inspector was correct in pointing out that the drawing showed a relationship between the proposed development and surrounding buildings which should have been capable of replication on the site at the time permission was granted and it was not. In short, the development is not capable of being implemented in accordance with the approved drawings because it is not capable of being implemented in a manner which replicates the street elevations both longitudinally and axially which are purported to be shown to scale on drawing P.04. To reach that conclusion does not involve any suggestion that the planning application granted might be capable of controlling the scale or appearance of adjacent dwellings beyond the application on site; it is simply a reflection of the inaccuracy in the plans leading to an inability to construct a development which accords with that which is depicted upon them.”
A simple case but with some potentially far-reaching conclusions for applicants:
1. Of course, be careful that all drawings, plans and written descriptions of your development proposal are accurate, are internally consistent and describe accurately the surrounding environment – particularly where by condition you are required to build in accordance with what has been set out. If there need to be caveats as to accuracy, include them.
2. To what extent has someone, at some remove from the detail, audited whether this is in fact the case and confirmed it, such that you can rely on that confirmation if an issue subsequently arises? It’s not the local planning authority’s job.
3. Always check that you will be able to comply with plans and other details that are set out in planning conditions. The condition here was all encompassing: “The development hereby permitted shall be carried out in accordance with the following approved plans: Site Location Plan; Drawing no. P.01 Rev C; Drawing no. P.02 Rev C; Drawing no. P.03 Rev B; Drawing no. P.04; Drawing no. P.05; Drawing no. P.06 Rev A; Landscaping Scheme Drawing no. TH/A3/1497/LS; Arboricultural Impact Assessment & Method Statement by Trevor Heaps Arboricultural Consultancy Ltd Ref: TH 1497 dated 11th December 2017 including drawing no. TH/A3/1497/TPP; Sustainability Statement by Henry Planning; Planning statement by Henry Planning; Document titled “Holden Road, London, N12 8SP – Part M4(2) Category 2 Accessible and Adaptable Dwellings”. I am always wary of such an approach. For instance, why were documents listed that were not even “plans” and precisely which elements of those statements were to be incorporated into the condition?
Simon Ricketts, 7 May 2021
Personal views, et cetera
NB Next Tuesday’s Queen’s Speech should be interesting, in terms of whether we will see any detail released as to the contents of the proposed Planning Bill and the Government’s proposed way forward, and what else is on the Government’s agenda impacting upon our little world. No surprise that this will be our main clubhouse #PlanningLawUnplanned topic for 6pm that evening. I hope you can join us – if you have an iPhone, here is an invitation.
There is so much that planning legislation does not address and where principles have had to evolve from case law. One of those is the extent to which development pursuant to one planning permission can be carried out without jeopardising the ability of a developer to carry out work pursuant to another planning permission which was granted over the same area of land.
The principle established in Pilkington v Secretary of State for the Environment  1 WLR 1527 has been essential to the modern planning system. In that case, Lord Widgery CJ set down the test as follows:
“One looks first of all to see the full scope of that which is being done or can be done pursuant to the permission which has been implemented. One then looks at the development which was permitted in the second permission, now sought to be implemented, and one asks oneself whether it is possible to carry out the development proposed in that second permission, having regard to that which was done or authorised to be done under the permission which has been implemented.”
The case turned on a simple situation of two planning permissions that were granted for the construction of a bungalow on the same plot of land, one positioning the bungalow at the centre of the site and the other in one corner.
The principle is now routinely applied to much more complex situations, for instance where outline planning permission has been granted for a large multi-phase development, a “drop-in” planning permission is often secured for a different form of development on part of the site and permission secured under section 73 for any necessary amendments to conditions attached to the main permission so as to ensure that if development is carried on part of the site under the drop-in permission rather than the main permission, there will be no breach of any conditions attached to the main permission. Any other procedural route, for instance requiring planning permission to be applied for afresh for the whole outline planning permission area would be unnecessarily unwieldy.
The same principle is also relevant when reliance is sought on what I might term “antique” planning permissions, planning permissions which may be hugely valuable if still determined to be live, because they were granted in a more liberal policy climate and when development was not so constrained in terms of planning conditions and obligations. Whilst Parliament legislated for a comprehensive review and modernising of old minerals permissions, it has not done this in relation to permissions for other forms of development.
Last week, in Hillside Parks Limited v Snowdonia National Park Authority (Court of Appeal, 3 November 2020), in a judgment by Singh LJ, the Court of Appeal considered the question of whether one such antique planning permission was still “live”, a 1967 permission for the development of 401 dwellings on 29 acres of land at Balkan Hill, Aberdyfi, granted by Merioneth County Council, as was. The development, governed by a master plan which has been repeatedly varied, has still only been partly built out. In 1987 there was litigation as to whether the permission could still be relied upon and Drake J held that it could. As summarised by the Court of Appeal in the latest proceedings, Drake J held as follows:
“First, the full planning permission of 10 January 1967 was lawfully granted. Secondly, the 1967 permission was a “full permission which could be implemented in its entirety without the need to obtain any further planning permission or planning approval of details”. Thirdly, “the development permitted by the January 1967 Permission has begun; and that it may lawfully be completed at any time in the future”. The fourth declaration concerned the satisfaction of the condition attached to the 1967 permission.”
Snowdonia National Park Authority became the local planning authority in 1996.
“Departures from the Master Plan were granted by the Authority on:
(1) 27 June 1996 for a single dwelling house as a variation to the 1967 Permission.
(2) 20 June 1997 for “two terraces forming: 1 attached dwelling, six apartment units and 8 garages with apartments over” as a variation to the 1967 permission.
(3) 18 September 2000 for a two-storey detached dwelling house and garage on Plot 5 of the Site.
(4) 24 August 2004 for 5 detached houses and 5 garages as a variation to the 1967 permission.
(5) 4 March 2005 for the erection of a 2-storey dwelling and detached garage on Plot 17 on the Site.
(6) 25 August 2005 for the erection of a detached dwelling at Plot 3 of “Phase 1” on the Site.
(7) 20 May 2009 for the erection of 3 pairs of dwellings.
(8) 5 January 2011 for 1 dwelling at Plot 3 on the Site.”
The facts are frustratingly unclear from the judgment, as to the precise nature of these permissions, and indeed the extent to which they were in fact variations of the masterplan approved by way of the 1967 permission.
“On 23 May 2017, the Authority contacted the Appellant, stating that, in its view, the 1967 permission could no longer be implemented because the developments carried out in accordance with the later planning permissions rendered it impossible to implement the original Master Plan. The Authority required that all works at the Site should be stopped until the planning situation had been regularised.”
Hillside sought a declaration from the High Court that the authority was bound by the ruling of Drake J back in 1987, that the permission could still be relied upon and that the “planning permission may be carried on to completion, save insofar as development has been or is carried out pursuant to subsequent planning permissions granted for alternative residential development”. The claim was rejected by HHJ Keyser QC at first instance. He held that the 1987 order was not wrongly made but that “the development which has occurred since 1987 now renders the development granted by the 1967 permission a physical impossibility and that future development pursuant to that permission would no longer be lawful.”
The Court of Appeal did not consider that there had been anything inappropriate about the way that the judge had dealt with Drake J’s ruling and did not consider that the authority should be prevented from raising the “Pilkington” issue even though its predecessor had not raised it before Drake J. In weighing up whether to allow that issue to be raised, the court recognised that “there are undoubtedly important private interests, including the commercial interests of the Appellant. However, there are also important public interests at stake, including the public interest in not permitting development which would be inappropriate in a National Park.”
Singh LJ’s next comments are of interest, and perhaps of some concern, if they are to be interpreted in any way as casting doubt on effectiveness of the modern “drop-in permission plus section 73 permission” process I referred to earlier:
“Furthermore, I would accept the submission made by Mr Lewis on behalf of the Respondent that there have been significant legal developments since the decision of Drake J in 1987. In particular, the decision of the House of Lords in Sage has placed greater emphasis on the need for a planning permission to be construed as a whole. It has now become clearer than it was before 2003 that a planning permission needs to be implemented in full. A “holistic approach” is required.
In Sage the main opinion was given by Lord Hobhouse of Woodborough, although there was also a concurring opinion by Lord Hope of Craighead. Mr Green emphasised that, on the facts of that case, what Lord Hobhouse was considering in terms was a planning permission for “a single operation”: see e.g. para. 23. It was in that context, submits Mr Green, that the House of Lords held that a planning permission must be implemented “fully” and that a “holistic approach” must be taken. Mr Lewis observed that, at para. 6, Lord Hope used the word “totality of the operations” (plural rather than singular). In my view, the important point of principle which arises cannot be determined according to semantic differences between the different opinions in the House of Lords. I would accept Mr Lewis’s fundamental submission that the decision in Sage made it clearer than it had previously been that a planning permission should be construed “holistically.”
As a matter of principle, I would endorse the approach taken by Hickinbottom J in Singh v Secretary of State for Communities and Local Government and Another  EWHC 1621 (Admin), in particular at paras. 19-20, where Sage was cited. Hickinbottom J was of the view that, reflecting the holistic structure of the planning regime, for a development to be lawful it must be carried out “fully in accordance with any final permission under which it is done” (emphasis in original). He continued:
“That means that if a development for which permission has been granted cannot be completed because of the impact of other operations under another permission, that subsequent development as a whole will be unlawful.”
At the hearing before us there was an interesting debate about a point which ultimately this Court does not need to resolve on this appeal. That issue is whether, in the circumstances envisaged by Hickinbottom J, all the development which has already taken place, apparently in accordance with the first grant of permission, is rendered unlawful simply by virtue of the fact that subsequent operations take place pursuant to another permission which is inconsistent with the first. The phrase used by Hickinbottom J (“subsequent development”) might suggest that it is only the later development which would fall to be regarded as unlawful. Mr Lewis contended that as a matter of principle it must be the whole of the development, including any development that has already taken place. That would have the consequence that there could be enforcement action, and potentially criminal liability, in relation to the development that has already taken place, even though it was at the time apparently in accordance with a valid planning permission. Mr Lewis submitted that in such circumstances it would be unlikely that enforcement action would be taken in practice. Even if that is right, that would mean that whether or not enforcement action is taken would be a matter of discretion rather than law. These are potentially important questions on which we did not receive full argument because they do not need to be decided on this appeal. I would therefore prefer to express no view on them.”
This concept of the planning permission having to be built out as a whole surely needs to be unpacked a little bit more. Sage v Secretary of State (House of Lords, 10 April 2003) was a case about the part-construction of a dwelling. Care needs to be taken in extending any concept that the development needs to be “implemented in full” and is to be regarded as authorising a “single operation” to modern multi-phase permissions. There is no specific requirement that such a development, once started, must be completed – if the local planning authority has a concern in that respect it can serve a completion notice (although of course that procedure is not without its difficulties).
Singh LJ rejects Hillside’s reliance on another old case, F. Lucas & Sons Ltd v Dorking and Horley Rural District Council (1966) 17 P & CR 111, as part of its argument that development pursuant to the 1967 permission on parts of the site was not inconsistent with development on other parts of the site pursuant to other permissions, but was he right to? As summarised by Singh LJ:
“Lucas was decided by Winn J in 1964. In that case, in 1952, planning permission was granted to develop a plot of land by the erection of 28 houses in a cul-de-sac layout. Later the plaintiffs applied for permission to develop the same plot by building six detached houses, each on a plot fronting the main road. Permission for this later development was granted in 1957 and two houses were built in accordance with it. Later, however, the plaintiffs proposed to proceed in reliance on the earlier permission from 1952 by building the cul-de-sac and the 14 houses on the southern side of it. That land was still undeveloped at that time. The plaintiffs sought a declaration that the earlier permission was still effective and entitled them to carry out the proposed development on that part of the site where it could still take place. Winn J concluded that the 1952 permission was not to be regarded in law as a permission to develop the plot as a whole but as a permission for any of the development comprised within it. Accordingly, it did authorise the “partial” development proposed by the plaintiffs.”
Surely this was exactly the effect of Hillside’s permission, and certainly how I would categorise modern planning permissions for multi-phase development. As long as conditions are not breached and there is adequate assessment of the cumulative effects, what is the problem?
Singh LJ says this about Lucas:
“…Lucas was a highly exceptional case. It has never been approved by an appellate court. It has never been followed or applied, so far as counsel have been able to show us, by any court since. Furthermore, it was described as being an exceptional case by Lord Widgery CJ (a judge with immense experience in the field of planning law) in Pilkington. Both this Court and the House of Lords have had the opportunity in the many decades since Lucas to consider whether it should be regarded as setting out a general principle or not.
In my view, it would not be appropriate for this Court now to overrule Lucas. In order to do so we would have to be satisfied that it was wrongly decided on its particular facts. It is not possible to be satisfied of that, not least because we do not have the advantage of seeing the precise terms of the planning permission which was granted in that case. It suffices to say that the case should be regarded as having been decided on its own facts.
As Hickinbottom J observed in the case of Singh, at para. 25, it is conceivable that, on its proper construction, a particular planning permission does indeed grant permission for the development to take place in a series of independent acts, each of which is separately permitted by it. I would merely add that, in my respectful view, that is unlikely to be the correct construction of a typical modern planning permission for the development of a large estate such as a housing estate. Typically there would be not only many different residential units to be constructed in accordance with that scheme, there may well be other requirements concerning highways, landscaping, possibly even employment or educational uses, which are all stipulated as being an integral part of the overall scheme which is being permitted. I doubt very much in those circumstances whether a developer could lawfully “pick and choose” different parts of the development to be implemented.”
Lawyers: what do you make of all this? Further thought is required but I am concerned that this judgment may have introduced further uncertainty into our system, which is complicated enough thank you!
The new guidance is simply explanatory and I haven’t spotted anything new as to, for instance, the circumstances in which local planning authorities should or should not restrict the operation of the Orders by way of condition.
In the meantime, there remains some Parliamentary focus on the nature of the changes.
The House of Lords Secondary Legislation Scrutiny Committee published a critical report on 10 September 2020:
“These instruments make substantial and wide-ranging changes to planning legislation. According to the Ministry of Housing, Communities and Local Government, the aim is to encourage and speed up the delivery of housing and to support the economic recovery after the pandemic, especially in relation to England’s high streets. The changes are de-regulatory and concerns have been raised that they could lead to the construction of low-quality housing, an increased concentration of fast food restaurants with an impact on the health of local residents, and reduce the ability of local authorities to shape the character of their high streets. These are issues which the House may wish to explore, including in the context of the Government’s plans for further, more fundamental reform of the local planning system which have been published for consultation. While the Committee notes the Government’s intention to support the economic recovery from the pandemic, the plans for further reform do raise the question whether it would have been more appropriate to take forward the significant and far-reaching changes made by these instruments in a future planning bill, enabling Parliament to scrutinise the changes more fully.”
are probably the three words I most associate with the planning system in England, since you asked.
The main part of this post is a commentary by special guest and fellow Town partner Duncan Field on the Government’s Planning for the future white paper, published on 6 August 2020.
But before we get to that, some initial comments from me on timescales.
The consultation period on the white paper ends on 29 October 2020.
The aspiration in the document is that (subject to time extensions for recent plans) new local plans should be in place by the end of this Parliament, so by Spring 2024. Given that those local plans will take up to 30 months to be put in place under the new system proposed, the necessary primary legislation will need to have been passed and in force, with any necessary accompanying Regulations and guidance, by Autumn 2021.
By way of proxy for legislative timescales, the less ambitious Housing and Planning Act 2016 and Neighbourhood Planning Act 2017 each took around seven months to pass through the necessary Parliamentary stages, which would mean introducing a Bill by the beginning of 2021. One perhaps has to look back to the Localism Act 2011 for planning legislation of equivalent complexity. That took eleven months from soup to nuts.
Something is going to have to give – either there is going to be rushed consideration of these proposals, which still need significant refinement, or that “end of this Parliament” aspiration is going to have to be reconsidered before long.
But in any event, things can be expected to move quickly.
The timescales in that document for the four sets of proposals within it are as follows:
· changes to the standard method for assessing local housing need: “Following the outcome of this consultation, the Government will update the planning practice guidance with the revised standard method for assessing local housing need.”
· securing of First Homes through developer contributions in the short term until the transition to a new system: “We intend to begin by making planning policy changes, to ensure that clear expectations are set. However, to ensure that First Homes are delivered, nationwide, on a consistent basis, we are keeping under consideration the option to strengthen the policy through primary legislation at a future date. We also intend to introduce an exemption from the Community Infrastructure Levy for First Homes, to enable delivery prior to wider developer contribution reform. This would require changes to regulations. Lastly, we are also considering significant reforms to the system of developer contributions. We will ensure that First Homes willcontinue to be delivered under a reformed approach”
· supporting small and medium-sized builders by temporarily lifting the small sites threshold below which developers do not need to contribute to affordable housing: “Following the consultation, a decision will be taken on whether to proceed with this approach. If it is taken forward, this could be through the introduction of a Written Ministerial Statement in the Autumn.”
· extending the current Permission in Principle to major development: “Following this consultation, if we introduce Permission in Principle by application for major development, we aim to introduce amending regulations this Autumn, with the regulations expected to come into force by the end of the calendar year. Changes to the fee structure would require separate changes to the Planning Fees Regulations.”
The white paper is in my view a considered document and less radical than might have been expected, although certainly ambitious in its breadth. Proposals spin out of it, one after the other, often just in a sentence or two. There are of course areas where there needs to be further thought or explanation. For me, there are two big ones in particular:
⁃ the way in which housing numbers are to be set by the Government for individual authorities and how to resolve the inevitable tension between a swifter examination process and a process that allows proposals in a plan (and the basis for proposals not being in the plan) to be properly tested (particularly where the plan is going to be the equivalent of a series of outline planning permissions for its growth areas);
⁃ how this new infrastructure levy is really going to work and how obligations are going to be addressed that presently are dealt with by way of section 106 agreement, in particular the delivery of affordable housing.
There will also have to be a clear working through of the respective powers and responsibilities across the system, as between government, strategic authorities, local planning authorities and neighbourhoods.
I must say that I found Chris Katkowski QC’s explanations in the latest Have We Got Planning News For You episode really helpful in bringing the proposals, and the thinking behind them, to life. And, boring to say, there is no substitute for reading the actual document.
Planning for the Future begins with some fairly combative language, referring to “our outdated and ineffective planning system” and drawing comparisons with a patched up building which needs to be torn down.
In truth the Government’s proposals do not go quite as far as that and in practice, to continue with the same analogy, we might end up with a better and more sustainable outcome if we were to save the parts of the “patched up building” which have architectural merit. The biggest problem with the current system is not that it is all inherently bad but that it is not sufficiently resourced; it is a pity that planning reforms by successive Governments have never really grappled with that central issue. The good news on this occasion is that the new system will be accompanied by a comprehensive skills and resources strategy for local authorities and key participants in the system; let’s hope the Government delivers on that.
Further on in the document there are some powerful words from the Secretary of State which bring home just how important a time this is for the planning system and what it can deliver. It is hard to disagree with any of this:
The outbreak of COVID-19 has affected the economic and social lives of the entire nation. With so many people spending more time at home than ever before, we have come to know our homes, gardens and local parks more intimately. For some this has been a welcome opportunity to spend more time in the place they call home with the people they love. For others – those in small, substandard homes, those unable to walk to distant shops or parks, those struggling to pay their rent, or indeed for those who do not have a home of their own at all – this has been a moment where longstanding issues in our development and planning system have come to the fore.
Onto the objectives for reform, which can be summarised as follows:
• Reduce complexity and with it, uncertainty and delay.
• In doing so, deliver a more competitive market with a greater diversity of developers.
• Remove the discretionary nature of individual development management decisions and replace it with a rule-based system of development control.
• In doing so, reduce planning risk and the cost of capital for development.
• Reduce the time it takes to produce a local plan.
• Simplify assessments of housing need, viability and environmental impacts.
• Restore public trust and encourage more widespread public participation.
• Get better at unlocking growth and opportunity, encouraging beautiful new places, supporting town and city centres and revitalising existing buildings as well as new development.
• Harness digital technology.
Linked to this is a long list of desired outcomes including the user experience, home ownership, access to infrastructure, economic growth and innovation.
We then come to the main proposals which the Government intends to bring forward:
1. Local plans
a. These will be simplified so that they only identify land for development, the sites that should be protected and the development that can take place. There would be three categories of land:
i. Growth – sites suitable for comprehensive development which, once allocated, will have outline approval for development.
ii. Renewal – sites where smaller scale development is appropriate, which would benefit from a statutory presumption in favour of development once allocated.
iii. Protected – sites with environmental or cultural characteristics where development should be subject to more stringent controls.
An alternative approach might be a more binary system (growth and renewal with permission in principle versus protected areas) or more scope for the existing development management approach in areas other than those allocated for “growth”.
b. Plans should become digital, visual and map-based, interactive and data rich, using a standardised approach to support open access.
c. Local plans (and neighbourhood plans) will be more focused on giving clear area-specific requirements for land that is allocated for growth and renewal including design codes; generic development management policies and duplication of national policy and guidance needs to be avoided.
d. Plans should be subject to a single test of achieving sustainable development instead of the current tests for soundness and the duty to co-operate. There would be no Sustainability Appraisal and instead this would be replaced by a simplified process for assessing the environmental impact of plans.
e. Local plans would meet housing need by reference to a standard method for establishing housing requirements developed and set at a national level; this would mean distributing the national housebuilding target of 300,000 new homes annually, and one million homes by the end of the Parliament, taking into account local factors including constraints, opportunities and affordability. The Housing Delivery Test would stay.
f. Local plans would have to be brought forward by reference to a fixed 30 month statutory timescale with six stages and individual timings for each stage.
g. Local planning authorities would be under a duty to review their plans every 5 years; powers of intervention would remain such as the issuing of directions and preparation of a plan in consultation with local people.
h. Neighbourhood Plans to be retained but with more focus on form of development to reflect the proposals for Local Plans.
This is a refreshingly clear vision of what local plans might become and a digitalised system would be transformative for the user experience and public engagement. However, there are some big questions around how to encourage strategic planning across local authority boundaries for the bigger than local issues (the Government is open to suggestions), how in practice the “sustainable development” test would work and, linked to that, how robust the new environmental assessment process will be.
Equally as important, what will the effect of these promised changes be on current local plans? Without further incentives or assurances around their continuing effect in any transitional arrangements as we switch over to the new system, there must be a real concern they will be halted in their tracks.
2. Development Management
a. As indicated above, growth areas allocated in a local plan would have outline permission for the principle of development; details would be agreed and full planning permission achieved through a new reserved matters process, a local development order or possibly, on bigger sites, via a development consent order.
b. Renewal areas would benefit from a new statutory presumption in favour of development and would benefit from either a new automatic consenting route where specified forms of development meet design and other prior approval requirements, a faster planning application process or a local or neighbourhood development order.
c. Proposals which do not conform to the local plan in renewal and growth areas could still come forward, exceptionally, through a planning application process.
d. In protected areas, proposals will have to be brought forward via a planning application (subject to any permitted development rights or local development orders) and will be judged against the NPPF.
e. Generally, the development management process will be based on a more streamlined end-to-end process with firm deadlines for determination through a mix of:
ii. Data access;
iii. Shorter and standardised applications with reduced or limited supporting material;
iv. A standardised approach to technical information, conditions and developer contributions; and
v. Delegation of detailed planning decisions to planning officers where the principle of development has been established.
f. The Government will build in incentives for prompt determination of applications by local planning authorities such as deemed approval of some applications or refunds of application fees.
g. The process will still be subject to call-in powers and appeals but the Government expects the volume of call-ins and appeals to reduce over time.
h. There will be encouragement for faster build out by making provision in local plans/design codes for a variety of development types by different builders (picking up on the conclusions of the Letwin Review).
This vision for the new development management system feels less clear: permission in principle and outline planning permission are used interchangeably in places as a consequence of land being allocated for growth; however, over and above this, there appears to be provision for a “full” planning permission through a new reserved matters system or local development orders or even development consent orders. Would this not remove a lot of the benefit of allocating land for growth? There is also a myriad of possible ways in which land allocated for renewal might gain consent and, in the meantime, we retain the current planning application process as well. If the Government is not careful it might add to the complexity of development management.
Certainly, we can all get on board with the much-needed streamlining of the development management process from end to end, with more standardisation, reducing the quantity of application documents and increased use of digital technology. However, resourcing this change will be key to its success.
3. Building better, building beautiful and sustainable places
Design and place-making is still high up on the Government’s political agenda. Proposals in this space include the following:
a. A National Model Design Code to be published in the Autumn which will work alongside the National Design Guide and the Manual for Streets; together these are expected to have a bearing on design of new communities and to guide decisions on development. (This will be an early entrant into the current planning system.)
b. Local guides and codes are to be prepared wherever possible to reflect local character but need to have input from the local community before they are given any weight in the planning process.
c. A new expert body will be set up to help local authorities make use of design guidance and codes, as well as performing a wider monitoring and challenge role for the sector.
d. The much-heralded “fast-track” for beauty will be achieved through:
i. The NPPF – which will have provision for schemes that comply with local design guides and codes to be approved quickly;
ii. Legislation to require that sites in growth areas should have a masterplan and site-specific code as a condition of the permission in principle which is granted through allocation in the local plan; and
iii. Widening permitted development rights through the use of “pattern books” for different building types.
e. The NPPF will require targeted consideration of measures to support climate change mitigation and adaptation. (In our view, policy has been playing catch-up on climate change for some time – this is long overdue and should be welcomed.)
f. There will be a quicker and simpler framework for assessing environmental impacts, stepping away from the current frameworks such as Strategic Environmental Assessment, Sustainability Appraisal and Environmental Impact Assessment. The key requirements for the new framework will be:
i. early consideration;
ii. clear and easy to understand; and
iii. avoidance of duplication.
A further consultation on this is expected in the Autumn.
g. The Government intends to review and update the planning framework for listed buildings and conservation areas, to ensure their significance is conserved while allowing, where appropriate, sympathetic changes to support their continued use and address climate change.
h. Improvements to the energy efficiency standards for buildings will be brought forward to help meet the 2050 net zero commitment.
The intention here is clear and consistent with the recent focus of the Government on design and beauty in the planning system. The area with the most loaded questions is the promised framework for assessing environmental impact; in our view, there is clear scope to reduce the voluminous and highly technical nature of the current framework but now is not the time to water it down in terms of its ambit and its protective function. We will have to wait until the Autumn to find out more.
There are radical proposals for the funding of infrastructure:
a. Replace S106 obligations and the current version of Community Infrastructure Levy with a new Infrastructure Levy calculated as a fixed proportion of the development value above a threshold, with a mandatory, nationally-set rate or rates (potentially variable by area).
b. This new levy will be charged on the final value of a development (or an assessed sales value where the development is not sold, e.g. build to rent) by reference to the rate in force when planning permission is granted. This would have to be paid before occupation.
c. Local authorities would be able to borrow against Infrastructure Levy revenues so that they could forward fund infrastructure.
d. The London Mayoral Community Infrastructure Levy and similar strategic Community Infrastructure Levies in combined authorities could be retained.
e. The Infrastructure Levy Could be extended to capture changes of use without additional floor area and through permitted development.
f. The new levy would be extended to fund affordable housing. Allowance would be made for in-kind delivery on-site, which could be made mandatory where an authority has a requirement, a capability to deliver on site and wishes to do so. In those circumstances local authorities would be able to specify the form and tenure of the on-site provision. The Government anticipates that there would need to be a considered policy approach to the risk of imbalance between the value of the agreed in-kind delivery and the fluctuating nature of the levy liability, contingent as it will be on the development value.
g. Local authorities could be given more freedom on how they spend the levy.
There is a lot of detail to be worked through here. Setting the new levy at a level which does not deter development (and indeed land supply through the price paid by developers) will be key and a difficult issue to judge.
The Government will also need to be scrupulous in ensuring that affordable housing continues to come forward using levy funds and still comes forward as part of mixed and balanced communities.
The removal of the blunt and inflexible tool that we have come to love or hate in the form of CIL is welcome in our view and with it the removal of a considerable amount of confusing and time-consuming red tape. For practical reasons – not least delivering site-specific solutions for development – we are not sure we are witnessing the end of S106 obligations or an equivalent just yet but they will undoubtedly be slimmed down.
The consultation document ends with a few final proposals and thoughts from Government on the delivery of a new planning system:
a. As a first step there is a parallel consultation on changes to the current system including extension of Permission in Principle (by application to major development), the standard method for assessing local housing need, First Homes and supporting SME builders by temporarily lifting the small sites threshold below which developers do not need to contribute to affordable housing. More here: https://www.gov.uk/government/consultations/changes-to-the-current-planning-system
b. The Government sees a potential delivery role for development corporations.
c. The reforms are considered likely to reduce judicial review risk.
d. The need for resources and skills is recognised and will be addressed through a comprehensive strategy. In principle, the Government’s view is that the cost of operating the new planning system should be principally funded by the beneficiaries of planning gain – landowners and developers – rather than the national or local taxpayer. Funding may also be achieved through application fees and potentially the new infrastructure levy or- to a limited extent – general taxation.
e. The Government intends to strengthen the powers for local planning authorities to enforce against breach of planning control and provide incentives for enforcement action to be taken.
To end where this overview began, resources are key and a comprehensive strategy to ensure the sufficiency of funding and skills will be very welcome, as long as it does what it says on the tin. This will be vital to the success of the new system.
We know now what the Government wants to achieve. It is up to all of us in the sector to help them make it work and if parts of the system are worthy of retention for their “architectural” merit, to explain why that is, with reference to the Government’s objectives.
This post focuses on another specific, urgent, issue. I assume that there is a large measure of consensus that deadlines for commencement of development under planning permissions (and equivalent deadlines other related consents) should be “on pause” for at least the duration of this present lockdown and its eventual gradual unwinding. Otherwise either applicants are going to need to embark on expensive lengthy and time-consuming (for everyone) applications for a fresh planning permission in due course (with a further hiatus on any construction in the meantime) or contractors are going to be out there doing unnecessary implementation works just to keep the existing planning permission alive.
(Some of you at this point will take the opportunity to have a swipe at applicants who have left it until near the deadline before implementing a permission or before submitting applications reserved matters approval, but these are old arguments which I have addressed before).
The current law
My 16 July blog post Unpacking UseItOrLoseIt considered the law on time limited planning permissions and the amendment that was made to section 73 by way of the Planning and Compulsory Purchase Act 2004 so as to prevent section 73 being used to extend the life of planning permissions.
In the wake of the 2008 global financial crisis, a procedure was allowed for, by way of the Town and Country Planning (General Development Procedure) (Amendment No. 3) (England) Order 2009, which sidestepped section 73 and provided for a simplified procedure for grant of a “replacement planning permission” for planning applications made for a planning permission to replace an extant permission, granted on or before 1st October 2009, for development which has not yet begun, with a new planning permission subject to a new time limit. For such applications, the requirement to provide a design and access statement was disapplied, consultation requirements were modified and plans and drawings did not have to be provided. Guidance was provided in the Government’s Greater Flexibility for Planning Permissions document.
“7.6 In 2009, the Department became aware of a reduction in the implementation rate of major schemes that already have planning permission. If large numbers of permissions are not implemented and subsequently lapse, this could delay economic recovery. Developers would have to make new planning applications for those schemes, which could lead to delay and additional costs. Furthermore, local planning authorities could find themselves dealing with a sudden upsurge in applications as the economy moves out of recession.
7.7 Following calls from the Local Government Association, the Confederation of British Industry and the British Property Federation, SI 2009/2261 amended the GDPO to introduce a new power to allow the time limits for implementation of existing planning permissions to be extended. The amendment enabled existing planning permissions to be replaced before expiring, in order to allow a longer period for implementation (although the previous planning permission is not revoked, rather a new permission granted subject to a new time limit). For this new kind of application, the requirement for design and access statements was removed, and the requirements for consultation were modified. SI 2009/2262 made associated amendments to the Listed Buildings Regulations to allow the provisions to apply to linked applications for listed building and conservation area consents.”
The procedure was extended for a final year in 2012 (the impact assessment is interesting to look back to and compare with current circumstances).
The legislative options
It seems to me that there are two basic approaches which might be taken:
The “automatic” extension option
The Government could look to achieve an automatic extension, for a defined period in relation to all planning permissions – in relation to the deadline for implementation and possibly also any deadline for submission of reserved matters applications in relation to outline planning permissions – with the extension potentially only available where the deadline is going to expire within a defined period of time.
Surely, such a change would require primary legislation, to amend the operation of sections 91 and 92 of the Town and Country Planning Act 1990. The Coronavirus Act would have been a useful vehicle but possibly moved too quickly through its legislative changes for this potential measure to jump aboard in the way that was achieved with the provisions enabling local authorities to hold meetings remotely.
Such an approach has in fact been taken in Scotland, as explained in the Scottish Government’s Chief Planner letter dated 3 April 2020:
“Some planning permissions will be due to expire over the coming weeks and months and, for various reasons caused by current restrictions, there will be difficulties in commencing development or carrying out necessary processes, such as the submission of applications for approval of matters specified in conditions, before deadlines pass.
The duration of planning permission is set out in primary legislation. Recognising that activity is likely to slow considerably over coming months, we included provisions in the Coronavirus (Scotland) Bill which will extend the duration of all planning permissions which are due to expire during an ‘emergency period’ of 6 months, so that the relevant permission or time limit shall not lapse for a period of 12 months from the date those provisions come into force.”
“The coronavirus outbreak will affect the ability of both planning authorities and applicants to deal with planning permissions which are due to expire. Planning permissions can broadly be separated into two categories: full planning permission and planning permission in principle.
When planning permission is granted applicants have a period of 3 years to commence development (authorities can provide for a longer period). If development is not commenced then that permission lapses and a new planning application is required. Planning permission in principle also requires the approval of conditions before development can proceed.
It is expected that the current restrictions on movement and potential continuation of social distancing and self-isolation will mean that applicants may be unable to satisfy the conditions attached to their planning permission or to commence development due to the shutdown of non- essential construction.
The aim is to ensure that where a full planning permission or planning permission in principle would expire then that permission should not lapse for a period of 12 months from the date on which the provisions come into force, irrespective of that development having not been commenced. The permission would only lapse if development has not commenced before the end of the 12-month period.
In relation to applications for approval of conditions, if the last date for making an application for an approval is within the emergency period then the time limit for making such an application is to the end of the 12-month period.
Necessity and urgency
It is important that when the current restrictions on movement are relaxed, developers are able to pick up where they left off, continuing with construction and having a pipeline of sites ready to move onto once current sites are completed. It is also important to reduce the burden on planning authorities who may otherwise be inundated with new applications to obtain a new permission.
The expiry of planning permission is an issue which has been raised by industry representatives who had expressed concerns about the ability of applicants to submit required information, apply to amend a condition to in effect get a new permission or commence development. Engagement at official level has also been undertaken with Heads of Planning, Scotland, Society of Local Authority Chief Executives, Society of Local Authority Lawyers and Administrators and the Convention of Scottish Local Authorities. Those consulted understood and appreciated the reasons for taking this action and were supportive of this intervention being time restricted.
No alternative to primary legislation is possible, and no powers exist which would allow these changes to be made in this way.”
I can only think of one way of achieving an automatic extension without primary legislation. What about creating a new permitted development right to carry out development within x months of the expiry of planning permission for development, subject to the expiry being before a specified date? There may be issues in relation to EIA development but is this a runner? Standard conditions applicable to any such PD right would need to secure the continued effect of any conditions attached to the original planning permission and somehow ensure that any existing section 106 planning obligations continue to apply.
The “enabling individual extensions” option
The alternative approach that the Government could take would be to find a way of enabling individual applications to be made that can be dealt with by authorities more simply than a fresh application for planning permission (which for a major application is a six or even seven figure sum investment, appalling as that figure is). In my view that would be less helpful than the Scotland-style automatic extension – this is not like the 2008 global economic crisis – all development is currently affected. A “pause” on time limits across the board is surely cleaner and would avoid a mass of individual applications. However, the “enabling individual extensions” option may be a quicker fix.
The “enabling individual extensions” options might include:
⁃ reintroducing the “replacement planning permissions” route exactly as per the 2009 statutory instrument, backed by appropriate guidance
⁃ (I appreciate this may jar but bear with me, we need to be creative) use of section 96A, given that there is no express prohibition (as there is with section 73) on the use of the non-material amendments procedure to vary time limits on planning permissions. Plainly, in normal circumstances, the extension of a time limit on a planning permission would be material, but could the Government, with proper justification, issue guidance that in the current exceptional circumstances, subject to consideration by the relevant local planning authority of individual circumstances when an application is made, it considers that in principle an extension of time for a period not exceeding, say, the current lockdown period, could be regarded as “non material”? I have re-read R (Fulford Parish Council) v City of York Council (Court of Appeal, 30 July 2019) and don’t immediately see that such an approach would be inconsistent with the approach that the Court of Appeal took to section 96A in that case.
⁃ (More cumbersome but surely legally achievable) the use of local planning authorities’ powers in section 97 of the Town and Country Planning Act 1990 to modify planning permissions where they consider it expedient.
What have I missed? I’m hoping that, like its predecessor, this blog post will very soon be past its sell by date.