Fawlty Powers: When Is A Permission Safe From Judicial Review?

A case last month arising from a howler of a permission for the erection of three marquees in the grounds of a hotel, a permission that was intended to be temporary but was issued without any condition to that effect, has potentially created a real mess. 
Pretty much the main thing that the commercial and financial world always wants from any consenting or licensing system, and certainly the planning system, is certainty as to when any necessary consent or licence, such as a planning permission, is free from legal challenge. Central to the legal due diligence work in relation to any operational business with a bricks and mortar presence, for instance in connection with its financing or acquisition, and certainly in relation to any property or development financing or acquisition, will be the need to report on the operative planning permissions and whether they are now beyond risk of being quashed by the courts. Once the judicial review period has passed, it is assumed that a permission can safely be relied upon, money can be lent or invested, properties or companies can be acquired. If the judicial review period has not yet expired, transactions will often be made conditional on its expiry without proceedings having been commenced. 

Judicial review periods are deliberately short so that we can all safely rely on public bodies’ decisions after a relatively short period. Compared with the six or twelve years’ limitation periods that are common in private law, the traditional principle in relation to judicial review is that proceedings must be brought promptly and in any event not later than three months after the grounds upon which the claim is based first arose (Civil Procedure Rules Part 54.4). 

In our planning world, time limits are usually even tighter:
– In relation to statutory challenges, for instance under section 288 of the Town and Country Planning Act 1990 for challenges of decisions of the Secretary of State and his inspectors on planning appeals and called-in planning applications, or under section 113 of the Planning and Compulsory Purchase Act 2004 for challenges of adopted development plans, the relevant time limit is six weeks. 
– Since 2013, the deadline for bringing judicial review proceedings in relation to other matters arising under the Planning Acts (care needed over that definition) is six weeks. 

But it isn’t quite as easy as assuming that, if these deadlines have passed, the relevant decision is free from any risk of judicial review. CPR rule 3.1 (2) (a) gives judges some discretion. Except where the rules provide otherwise, the court may “extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired)“. 
A separate form needs to be submitted with the claim, asking for a time extension and explaining why it is justified. The Administrative Court Judicial Review Guide states:
The Court will require evidence explaining the delay. The Court will only extend time if an adequate explanation is given for the delay, and if the Court is satisfied that an extension of time will not cause substantial hardship or prejudice to the defendant or any other party, and that an extension of time will not be detrimental to good administration.
The Court of Appeal last year in Connors and others v Secretary of State (17 November 2017) stressed the extent to which the onus is on the claimant to justify being allowed to bring a claim out of time and waiting to learn the outcome of another case was not a sufficient ground:
“In the context of planning decision-making, this court has made it very clear that the exercise of judicial discretion to permit very late challenges to proceed by way of claims for judicial review will rarely be appropriate – regardless of whether the claimant has had available to him and acted upon legal advice (see the judgment of Sales L.J., with whom Lord Dyson M.R. and Tomlinson L.J. agreed, in R. (on the application of Gerber) v Wiltshire Council [2016] 1 W.L.R. 2593, at paragraphs 45 to 58).”
R (Gerber) v (1) Wiltshire Council (Court of Appeal, 23 February 2016) was a case I mentioned in my 24 March 2018 blog post Once More Unto The Breach Of Legitimate Expectation, Dear Friends. The claimant sought to challenge a planning permission for a solar farm project over a year after the permission had been issued. At first instance, Dove J had been persuaded to allow the claim, accepting that the delay was justified first because there had been a breach of legitimate expectation, established by the council’s statement of community involvement, that he would be consulted at application stage about the proposal and so had an excuse for not knowing about the permission being granted and secondly that part of the delay had been caused by a first firm of solicitors having given ‘incomplete’ advice as to his potential remedies. The parties all accepted that there were in fact errors with the permission which made it unlawful. 

The Court of Appeal rejected on the facts the SCI breach of legitimate expectation argument and thought that the abortive approach to the first firm of solicitors was not a sufficient excuse for the delay. Refusing to allow the claim to be brought out of time it took on board took into account that “substantial hardship or prejudice” would be caused to the solar farm operator, which in the meantime had built its facility:
“On 23 July 2014 Terraform completed an Initial Public Offering on the NASDAQ Global Select Market based on a prospectus listing Norrington as a project generating cash flow in the United Kingdom. Terraform and Norrington make the point in these proceedings that if the planning permission is quashed, that will harm the ability of companies seeking to invest in green energy generation in the United Kingdom to attract investors to fund such projects, because of the uncertainty whether they will be able to rely on planning permissions granted by planning authorities to carry out such developments even though they have gone without challenge within the time provided for in CPR Part 54.5 and indeed, as in this case, for a considerably longer period.”

“The evidence for Norrington and Terraform, the substance of which was accepted by the judge, is that if the planning permission is quashed and they are required to dismantle the solar farm, the cost of dismantling it and restoring the Site to agricultural use would be around £1.5 million. In addition, the cost of installing the solar farm of about £10.5 million would have been wasted and lost. In addition, a premium of £2000 paid for an option to take the lease and locked-in rental payments of approximately £36,300 under the lease would also be wasted.
Sales LJ  concluded: 

“In my judgment, where proper notice of an application for planning permission has been given pursuant to the 2010 Order it is not appropriate to extend time for bringing a legal challenge to the grant of such permission simply because an objector did not notice what was happening. Extending time in such a case so that a legal objection could be mounted by someone who happened to remain unaware of what was going on until many months later would unfairly prejudice the interests of a developer who wishes to rely upon a planning permission which appears to have been lawfully granted for the development of his land and who has prudently waited for a period before commencing work to implement the permission to ensure that no legal challenge is likely to be forthcoming, as happened here. Prompt legal action after grant of a planning permission to challenge its lawfulness will be required in all cases, unless very special reasons can be shown of a kind which are wholly absent in this case. Especial speed will be expected in the case of objectors who have been involved in the planning process throughout, as emphasised by Keene LJ in Finn-Kelcey at [24], but it does not follow that the strong requirement of prompt action will be substantially relaxed in the case of someone who, despite a planning authority’s compliance with the notification rules laid down in law, remained in ignorance.
The Court of Appeal did extend the time for bringing a claim in Croke v Secretary of State (Court of Appeal, 6 June 2017) which was, as so often, somewhat of a comedy of errors. Given that the deadline for lodging the claim was 23 March 2016, this is what happened:
“The Applicant, who is acting in person, wished to challenge the Inspector’s decision. He proposed to do so by issuing a section 288 claim in the Administrative Court Office at the Royal Courts of Justice, in person, on 23 March 2016. However, that day, he missed his train. Therefore, he emailed the relevant documents to a friend, Mr Miller, who was apparently located only a few minutes from the court; and he asked him to file the claim. It is the Applicant’s case, accepted by the judge below for the purposes of the application before her and by Mr Mills for the Secretary of State today, that Mr Miller arrived at the Royal Courts of Justice at 4.25pm; but, although the advertised closing time for the court was 4.30pm, he was refused entry at the main front entrance of the building, the security guard there informing Mr Miller that the counters were closed.

The following day, Thursday 24 March, the Applicant personally attended the Administrative Court Office, where he arrived at 3.30pm. It was Maundy Thursday and, for the court office, the last working day before the Easter break. Due to the volume of people in the queue, he was not seen until about 5pm, when he was informed by a member of staff that he had used an out-of-date claim form, and he would need to complete a different form. He was given a copy of the new form, and he asked if he could complete it there and then. He was told that he would have to return the next working day. The following day was Good Friday, and the next day upon which the court office was open was Tuesday 29 March. The Applicant attended the Administrative Court Office that day, and filed the claim.”



The court at first instance struck out the claim as out of time. The Court of Appeal however granted permission to Mr Croke to appeal, taking into account that there did not appear to be any legal authority applying to these precise facts:
“Having considered the ground of appeal with particular care – and not without some hesitation – I am persuaded that this appeal is arguable, particularly given the absence of authority on this point. It is also noteworthy that this issue affects not just section 288 claims, but a variety of proceedings where there are strict time limits. Therefore, although the Applicant himself accepts that the merits of his particular case may not be the strongest or attract great sympathy, the issue of principle involved does or may have some broader importance.”
(I don’t know what then happened with Poor Mr Croke’s claim. Deadlines, the risk of missing or incorrect paperwork (or an incorrectly drawn cheque), reduced court hours for filing out of court terms and the current long queues at the Royal Courts of Justice to file claims all combine to give solicitors nightmares – clients, please don’t leave it to the last moment!). 
All this brings us to last month’s case, R (Thornton Hall Hotel Limited) v Wigan Metropolitan Council (Kerr J, 23 March 2018).
The claimant operates Thornton Hall Hotel and the interested party, Thornton Holdings Limited, operates Thornton Manor. The hotels are competitors for wedding bookings and other functions. 

On 7 September 2011 Wigan Council’s planning committee resolved to grant planning permission for three marquees to be erected in the grounds of Thornton Manor. The hotel is in the green belt (as well as being listed grade II* – any Fawlty Towers references in this blog post are by the way wholly inappropriate as will be seen from the above image, courtesy of hitched.co.uk). According to the judgment the committee resolved that very special circumstances existed to allow for the erection of the marquees for a limited period of five years so as to secure “the “generation of an income stream” to enable restoration of the gardens, which were in decline and at risk“. The proposed permission with appropriate conditions was drafted. Indeed, a draft in that form was annexed to a section 106 agreement that was entered into on 11 November 2011. However, the actual permission that was issued on 20 December 2011 and placed on the council’s website omitted any conditions whatsoever, no restriction to five years, no nothing. 
The agent for Thornton Holdings cottoned onto this immediately and said nothing. However the problem was it seems not apparent to the council until the five years period expired and the marquees were not dismantled. The council took a report to committee in July 2017 accepting that a mistake had occurred. A little over a month later (and almost six years after the decision complained of, ie the issue of the incomplete permission) Thornton Hall Hotel Limited brought its proceedings, which were not opposed by the council – so the hearing was purely hotel versus competitor hotel. 
Kerr J allowed the late challenge, and quashed the permission, for nine reasons:
1. The error had been made in issuing the flawed permission. 
2. Permanent permission would not granted and would not have been in the public interest. 
3. “If the marquees are now allowed to stay permanently, the proper operation of the planning process will have been subverted.”
4. That would be contrary to the public interest. 

5. The interested party was aware of the error. 

6. “it follows that the interested party ran its commercial operation at Thornton Manor from 22 December 2011 knowing that the presence of the marquees after 19 December 2016 would be, at the very least, a matter of possible controversy and possible legal challenge. It was not, in my judgment, realistic to rely on expiry of the three month limitation period without also bringing the issue into the open, which the interested party decided not to do.”

7. It follows that the interested party cannot say that it would be prejudiced by the quashing due to lost bookings. 

8. “it is said by the interested party that it would be detrimental to good administration if the marquees have to be removed. Normally, detriment to good administration in public law cases relates to the undesirability of interfering with the provision of public services rather than commercial interests. I see no detriment to good administration in rectifying the error. I think it is detrimental to good administration that the marquees are still there. Good administration includes correct implementation of planning decisions.”

9. “the interested party signed the section 106 agreement embodying the omitted conditions including the five year time limit. Yet, it proceeds in this litigation as if it were not bound by the terms of that agreement. That seems to me only to compound the unconscionability of its position. It undertook in private law the same obligations as it denies in public law.”

As they say, hard cases make bad law. Whilst clearly no-one should have any sympathy for the interested party, which saw that it had by luck gained something it never deserved, there are really serious repercussions and I can’t see that other factors were taken on board by the judge, for instance:
1. There is no discussion of the public interest in being able to rely on permissions once free from legal challenge. When acting on the acquisition of properties or businesses, what do we now need to do to ensure that our client isn’t going to find that its permission is similarly flawed? Sometimes it will not be at all obvious. Does the permission, even if many years old, need to be checked against the resolution to grant? What about other latent flaws in it?
2. Surely, the council should have sought a revocation or modification order. No doubt it would have had to pay substantial compensation to Thornton Holdings but is that relevant? The permission was on the website and could have been challenged within the deadline. No-one challenged it (and why indeed should it be down to a competitor to spend money at risk on a challenge? What if it hadn’t?). It used to be considered that authorities, in considering whether to make a revocation or modification order, couldn’t take their potential compensation liability into account. To my mind it was a sad day when that changed as a result of the Supreme Court’s ruling in Health & Safety Executive v Wolverhampton City Council (Supreme Court, 18 July 2002). As a result, revocation and modification orders are almost unused. 

3. There are of course many examples of flawed permissions which authorities issued in error where hitherto the possibility of a late challenge does not appear to have been considered. (See some of them in my 14 October 2017 blog post Flawed Drafting: Interpreting Planning Permissions). Is this ruling, even if only slightly, going to open the floodgates, particularly in relation to the errors that most frequently occur on section 73 permissions where it turns out that previous restrictive conditions have been lost, for example as to the types of goods that may be sold from a retail park?

Does anyone knows whether an application for permission to appeal has been made? I would welcome views as to how we all take on board the practical implications of this case. Or do we simply regard it as turning on fairly extreme facts? I’m not so sure. 

Simon Ricketts, 7 April 2018

Personal views, et cetera


No conditions, you say?”

Permitted Development: À La Recherche Du Temps Perdu

Feeling a little Proustian après MIPIM? Where did that time go?
Some minor changes have been made this month to PD rights, more significant changes are possibly still to come and some existing PD rights remain controversial.
The minor changes
The Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2018 was made on 8 March 2018 and comes into force on 6 April 2018. It makes various detailed amendments to the existing regime, the most significant ones being:

– Extending the existing temporary right to change use of a building from a storage or distribution centre to a dwellinghouse, which was shortly to expire. The prior approval date must be by 10 June 2019 and the change of use must be completed within three years of the prior approval date. 
– Expansion of the permitted development right to change the use of agricultural buildings to dwellinghouses such that the maximum amount of floorspace that may be converted is increased from 450 sq m to 465 sq m and up to five dwellinghouses may be created from that floorspace rather than three. 

– Enabling the Secretary of State to pause the 28 day period for prior approval where he is considering calling in an application for his own determination. 

The more significant possible further changes
In my 15 June 2016 blog post Permitted Development: What Next? I speculated as to whether two further permitted development rights would be created, which the Government had previously contemplated, namely:

– Office demolition and residential rebuild
– Upward extensions in London
21 months later, the position is still uncertain in relation to both proposals. If they are introduced their scope could well be wider than initially envisaged, but will they? More lost time if they are introduced and prove to be successful in increasing housing supply. 
We had heard nothing on office demolition and residential rebuild since Brandon Lewis’ October 2015 announcement, and it was assumed that the idea was dead, until the unexpected announcement in the Autumn 2017 budget policy paper that “the government will consult on introducing… a permitted development right to allow commercial buildings to be demolished and replaced with homes“. 
Was the reference to “commercial buildings” intentionally wider in scope than just offices? What would be the prior approval requirements? Would there be a floorspace cap? I had hoped for an update alongside the draft revised NPPF announcements in February or alongside the Spring budget statement this month but still we wait. 
Similarly, we had heard nothing about the proposed PD right for upward extensions in London since a joint Mayor of London/DCLG consultation paper in February 2016. The ministerial policy statement on 5 February 2018 appeared to make it clear that the initiative (now across England, not just London) would be dealt with by policy, within the NPPF. But then Sajid Javid’s speech launching the draft revised NPPF on 5 March 2018 had this passage:
And there are also other areas in which we’re ready to go further to take the delivery of housing up a gear.

Including a new permitted development right for building upwards to provide new homes.”
I’m left scratching my head in relation to both proposals, frankly. 

Office to residential and other existing PD rights
The office to residential permitted development right remains controversial. Undoubtedly it has delivered in terms of increasing housing stock, although with a free ride for developers in terms of affordable housing and other contributions and in some areas jeopardising the stock of office floorspace. Quality of the conversions has been variable. But, in a housing crisis, has the end justified the means?
The Local Government Association published some campaigning research One in 10 new homes was a former office against the right on 18 January 2018.  

The current areas exempted from the right will lose that exemption from 31 May 2019 and many authorities are taking steps to remove it in any event by way of Article 4 Direction, for instance recently Westminster City Council (see its 26 January 2018 report to cabinet). Indeed, policy SD5 F of the draft London Plan supports that approach:
The Mayor will work with boroughs and support them to introduce Article 4 Directions to remove office to residential permitted development rights across the whole of the CAZ and the Northern Isle of Dogs (and those parts of Tech City and Kensington & Chelsea lying outside the CAZ)
It will be interesting to see how this tension with national policy is addressed at the examination into the draft plan.
In the meantime, inevitably given the complexity now of the PD rights regime and its advantages for developers in many situations over the traditional planning applications procedure, we have seen an increase in litigation as to the nuts and bolts of the prior approval procedure. 

Most recently, in R (Marshall) v East Dorset District Council (Lang J, 13 February 2018), prior approval for the erection of an agricultural building was quashed on the basis that the PD right excluded buildings for the accommodation of livestock, whereas the application for prior approval had indicated that one of the proposed uses of the building was to “winter house 45 ewes and their lambs through the winter period“!
Last year’s decision in Keenan v Woking Borough Council (Court of Appeal, 16 June 2017) is also interesting, on a similar theme, making clear that where the authority fails to respond to an application for prior approval within 28 days, such that there is a deemed prior approval, if the proposed development did not fall within the criteria of the relevant part of the General Permitted Development Order it does not as a result of the deemed approval become “permitted development”. 
Accordingly, whether or not you have prior approval, or deemed prior approval, your proposed development still needs to fit within all of the relevant restrictions and thresholds within the Order. 
To end with M Proust:
“...loopholes opened by disappointment. Dreams are not to be converted into reality, that we know; we would not form any, perhaps, were it not for desire, and it is useful to us to form them in order to see them fail and to be instructed by their failure.”
Simon Ricketts, 17 March 2018
Personal views, et cetera

A Change Is Gonna Come (But Should It Really Need A Fresh Planning Permission?)

All change on Monday, with sight of the draft revised NPPF, but this blog post focuses on a more fundamental issue: how unnecessarily hard it can be to make changes to a scheme that has planning permission without having to go back to the very beginning again.
Why do schemes change post-permission in the first place? It’s unsurprising when you consider:
– the time that it takes to obtain planning permission for a large project, during which market demand or other circumstances may have changed;
– the extent to which relatively detailed parameters need to be fixed at such an early stage even for an outline application;

– the opportunities that often arise to increase densities or make other improvements once a house-builder or end-user takes over the reins from the initial applicant (for the avoidance of doubt strategic land promoters are a good and necessary thing – often no-one else is going to fulfil that upfront, high risk/high cost, role at the outset of long-term projects beyond a certain scale). 

These scheme changes are often to be welcomed and yet sometimes it seems as if the planning system conspires to prevent them. See Philip Barnes’ blog post ‘A simple way of increasing housing delivery‘ (11 January 2017) for an excellent articulation of the practical frustrations from a house-builder’s perspective. 
Of course there are two mechanisms available:
– section 73 of the Town and Country Planning Act 1990 enables “applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted.”
– section 96A of the 1990 Act enables a local planning authority to approve a “change to any planning permission relating to land in their area if they are satisfied that the change is not material.”

But there are limitations to both procedures, some in the legislation itself (for instance section 73 applications cannot be used to extend the life of a planning permission and section 96A applications can only be made “by or on behalf of a person with an interest in the land to which the planning permission relates“), some by way of case law and some (the most problematic, because so uncertain) by reason of the breadth of discretion that local planning authorities have in determining whether the particular changes sought fall within the ambit of either procedure – not assisted at all by vague and unnecessarily restrictive advice in the current Planning Practice Guidance. 
The detailed position is set out in Town partner Clare Fielding’s 2015 paper to the Oxford Joint Planning Law Conference From concept to construction: the law and practice of amending planning permissions. It is disappointing that we are still in as uncertain a place as we were then. 

The main problem is the lack of any firm rules as to the extent of changes to a planning permission which can be secured under section 73. The leading case remains Coventry City Council ex p Arrowcroft Group plc (Sullivan J, 21 July 2000), where there is the often quoted passage from Sullivan J:
“It is true that the outcome of a successful application under section 73 is a fresh planning permission, but in deciding whether or not to grant that fresh planning permission the local authority ‘… shall consider only the question of the conditions subject to which planning permission should be granted’…Thus the Council is able to impose different conditions upon a new planning permission, but only if they are conditions which the Council could lawfully have imposed upon the original planning permission in the sense that they do not amount to a fundamental alteration of the proposal put forward in the original application.” 
So the guiding principle is what is a “fundamental” alteration? “Fundamental” is a big thing as far as lawyers are concerned – think from the law of contract the principles of “fundamental mistake”, “fundamental breach” and “fundamental lack of consideration – it’s not just millennial adjective-inflation along the lines of fabulous, awesome and great!
And yet successive Governments have since 2009 described the procedure as the making of “minor material amendments” (hence for those of us in the trade the inevitable acronym of “MMA” for section 73 applications – lose that please folks!). The current Planning Practice Guidance says this:
There is no statutory definition of a ‘minor material amendment’ but it is likely to include any amendment where its scale and/or nature results in a development which is not substantially different from the one which has been approved.”
The roots of this are in the (now cancelled) document published first in 2009 and then updated in 2010, Greater Flexibility For Planning Permissions – a proportionate and timely response at the time to the financial crisis and its implications for house building and economic development more generally. Aside from re-introducing for a temporary period the ability to extend the duration of planning permissions, the document gave guidance on the use of the then new section 96A procedure for non-material amendments (introduced by the Planning Act 2008) and sought to “streamline and clarify” the section 73 procedure in the light of the Killian-Pretty review which had recommended that “the Government should take steps to allow a more proportionate approach to minor material changes in development proposals after permission has been granted” and some further work carried out by WYG, in which WYG had come up with that problematic wording:
A minor material amendment is one whose scale and nature results in a development which is not substantially different from the one which has been approved
The purpose of the guidance and the thrust of the Killian-Pretty and WYG work was not in any way to cut back on the use of section 73 but, by incorporating in guidance those references to “minor material amendment” and “not substantially different” the Government introduced confusion. “Minor material amendment” may be a handy phrase but a more accurate one, reflecting the law, would be:
less than fundamental amendment, whether material or not“. 
As a result of the confusion we have a patchwork situation where many authorities have been comfortable approving significant changes by way of section 73 (for instance Barnet Council at Brent Cross Cricklewood) but others have been running scared or seeking legal advice which is ultimately of little assistance – the authority must consider whether the changes are a “fundamental alteration of the proposal put forward in the original application”. That is a matter of planning judgment, albeit in my view “fundamental” means “fundamental”!
There has been surprisingly little case law, although two cases from last year are helpful:
R (Vue Entertainment Limited) v City of York Council (Collins J, 18 January 2017) where the court upheld a section 73 permission relation to a mixed use development, where the changes to the permitted scheme included increasing the size of a proposed cinema from 12 screens with a capacity of 2,000 people to 13 screens with a capacity of 2,400. 
– R (Wet Finishing Works Limited) v Taunton Deane Borough Council (Singh J, 20 July 2017) is also interesting – not just because a challenge to a approved change from 84 to 90 dwellings failed (how could that have been fundamental in anyone’s mind?) but because the 84 dwellings figure was included in the approved description of development and that was still not a bar on the change being approved via section 73. An area of repeated debate is whether a section 73 permission can achieve amendments to conditions which are inconsistent with the approved description of development and often a section 96A application is made to amend the description of development, replacing any reference in the description to numbers of, for instance, dwellings, with a condition to the same effect, so that that condition can then be amended by section 73. You begin to see the unnecessary bureaucracy, legalism (caused by fear of judicial review) and scope for uncertainty. 
So why not simply make a fresh application for planning permission rather than seeking to proceed under section 73? 
First and most importantly, inevitably there is less risk of being drawn back into a prolonged consideration of the merits of the proposal itself. This is of course another area that is not black and white. Whilst section 73(2) states that “[o]n such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted“, inevitably if policies have changed since the existing permission was approved the decision maker may seek to use the section 73 application as a means of applying them, asserting that the section 73 permission should only be granted with those additional or tightened conditions or obligations.
Secondly, rather than starting afresh with another full set of application documentation, it is likely to be acceptable simply to supplement the existing material where necessary, reducing significantly the scale of the application package for all concerned. Where the existing permission was supported by a viability appraisal that process will need to be updated (in London there is guidance on this in the affordable housing and viability SPG and policy H6 paragraphs G to J of the draft London Plan). A deed of variation to the existing section 106 agreement is more likely to be accepted, rather than requiring a fresh section 106 agreement. 
Thirdly, a section 73 application may be the only way of avoiding being hit for CIL on top of existing section 106 obligations which were intended to contribute to the same infrastructure requirements, where the local planning authority has adopted a CIL charging schedule since the original planning permission was issued. 
Fourthly, a flat £234 application fee rather than a fee of up to £150,000 for an application for outline planning permission. Maybe that £234 figure is too light, particularly where more than one condition will be changing from the original permission, but there is no basis on an amended scheme for paying the same fee as first time round. 
Of course, care is needed by the authority in drafting the section 73 permission (see my 14 October 2017 blog post Flawed Drafting: Interpreting Planning Permissions).

Why are there also arguments, in the context of section 96A, as to whether amendments are “material” or not? Well, section 96A is an extremely useful procedure, in that there a 28 day determination timescale (rather than the normal application timescale that applies for section 73 applications), there are no consultation requirements and it does not result in a fresh planning permission, meaning that there is no need to vary the existing section 106 agreement. Of course, again what is material (ie material in planning terms) is for the local planning authority to determine and as long as its determination on the issue is reasoned, any potential challenger to an approval faces an uphill struggle. Conversely, the applicant has no right of appeal to the Secretary of State. The authority is in a position, of (to be cynical) much power or (to be more realistic) being unclear as to what approach it should take – which again is a reason to consider whether clearer, more positive, guidance in the PPG is required rather than this:
There is no statutory definition of ‘non-material’. This is because it will be dependent on the context of the overall scheme – an amendment that is non-material in one context may be material in another.”
In unveiling the draft revised NPPF (and potentially draft revised PPG alongside it) on Monday, will the prime minister take the opportunity to clarify for us that “non-material” means “non-material” and that “fundamental” does indeed mean “fundamental”? Probably not, she will focus on grander matters I’m sure, but the section 96A and section 73 procedures are two of the dull, forgotten but necessary, nuts and bolts of the process that have the most tendency to jam. Jam today, no homes tomorrow. 
Simon Ricketts, 3 March 2018
Personal views, et cetera

Restricting Pre-Commencement Conditions: It Will Be A Start

A few words on planning law before something more important. 

This week it was good to see MHCLG’s consultation document Improving the use of planning conditions: consultation on draft regulations (30 January 2018). Unnecessary pre-commencement conditions and the jams caused to project programmes are a pain. However, I’m not sure that this remedy is the panacea (I’m trying to resist the temptation to coin the term “planacea”, oh..). 

 What is proposed is that any decision maker cannot grant planning permission containing a pre-commencement condition unless the applicant has either agreed to the terms of the condition or hasn’t responded within ten working days.

 That is positive and should reflect good practice, certainly on bigger schemes where lists of draft conditions are shared by officers for discussion with the applicant prior to permission being issued. However, as usual, if you delve into the legal detail, I’m not sure that the mechanism will be as broad in its scope as you might think, due to the definition of “pre-commencement condition” in the parent legislation. Section 100ZA(8) Town and Country Planning Act 1990, introduced by section 14(1) of the Neighbourhood Planning Act 2017, defines “pre-commencement condition” as:

 “a condition imposed on a grant of planning permission (other than a grant of outline planning permission within the meaning of section 92) which must be complied with—

 (a) before any building or other operation comprised in the development is begun, or

 (b) where the development consists of a material change in the use of any buildings or other land, before the change of use is begun.”

 This rules out use of the procedure on outline planning permissions! That certainly isn’t identified in the consultation paper. I can see why the procedure shouldn’t apply to the standard condition setting out the matters for which reserved matters approval is required but for all other pre-commencement conditions the position is the same as for full planning permissions.

The definition also has the effect of restricting the process to “pure” pre-commencement conditions. The requirement would not apply to a condition that prevented any development from proceeding save for defined initial works which might be very minor, but for which discharge might still be critical to the overall development programme, or to conditions that might need to be discharged before particular phases of development could proceed. “Pure” pre-commencement conditions are indeed a particular evil for developers as they will often be in the way of the planning permission being kept alive by the carrying out of an initial material operation (and may indeed lead to difficult CIL liability issues – set out in a good 5 January 2018 blog post CIL – false starts can be punishing by Roy Pinnock) but they are no more problematic for the timely carrying out of the whole development than other conditions.

What if an applicant resists a requested pre-commencement condition? Of course it is to be hoped that a compromise will be found. But if not, ultimately the decision maker’s only option may be refusal of the application.

What if a decision maker fails to follow the procedure and issues a permission with an unwelcome pre-commencement condition? In theory of course the applicant might consider challenging the permission by way of judicial review but surely this would be a sledgehammer to crack a nut as opposed to a section 96A or 73 application to amend the condition.
So that was all I had to say on a short consultation paper.
But what really has been on my mind this week has been the sad news of the death of retired Court of Appeal judge Sir Henry Brooke. As a lawyer and more specifically in the last few years as a legal blogger he was an inspirational figure to me. I didn’t know him personally but felt as if I did. His humanity, intellectual generosity, and wisdom – along with a healthy and undimmed preparedness to put technological advances and social media to practical use – was evident in all he blogged and tweeted. For instance, if you’ve benefited from the use of technology in court, or clicked into Bailii case transcripts? Thank Sir Henry. In the time I’ve saved you by this short post, do dip into his “musings, memories and miscellanea” blog, within which you will find this transcript of his 2008 Peter Boydell memorial lecture on The role of Mediation in Planning and Environmental Disputes. My condolences to Sir Henry’s family.

 Simon Ricketts, 2 February 2018

 Personal views, et cetera

Brownfield Land Registers: A Bit Of Progress

I last blogged about the new brownfield land regime back in April 2017. Back then, the deadline of 31 December 2017 had been set for local planning authorities to publish their first registers. We were also waiting for the final set of regulations that would set out the procedure by which, if your land is listed in part 1 of the register, you can apply for “permission in principle” (if your land is in part 2 of the register it is automatic). 
This blog post takes a quick look at some of the registers that have been published to see the approaches that authorities are taking – after all, whilst authorities had the 31 December deadline for publishing their registers, there was no minimum number of sites to be included, whether on part 1 or part 2 and no procedure for appeal or independent scrutiny if a land owner considers that their land has been wrongly overlooked. 
In the longer term, I hope that something will be done about authorities that only pay lip service to the process, although it is difficult to see what, without a more prescriptive system, or other sticks and carrots being applied. DCLG’s planning update newsletter published on 21 December 2017 stated:
“DCLG will assess progress in January, and it will be important that published registers contain up-to- date information on brownfield land suitable for housing. 

In July we published planning guidance, a data standard, and a template , to support local planning authorities in preparing and publishing their registers, and to ensure registers are published in a consistent and open format which can be aggregated by users of the data.”
From a quick google, it seems to me that authorities have met the deadline. However:
– the sites included do not appear to go beyond sites which were already in play by virtue of either having permission, an allocation or having featured in the authority’s strategic housing land availability assessment
– sites have not yet been included in part 2

– whilst the government’s data standard and template have been followed, the supporting information is pretty sparse. 

These are three authorities that I chose to look at, by way of a random selection:
Elmbridge Borough Council’s register only contains sites that already have planning permission. 
Milton Keynes Council has decided not to include any sites on part 2 of its register. Its part 1 sites all come from its SHLAA as well as unimplemented planning permissions. 
The notes to Islington Council’s register set out uncertainties as to the required methodology:
“The Regulations and PPG are not clear about whether the 5 dwelling threshold for inclusion on the BLR refers to net or gross dwellings. Regulation 4 of the Regulations merely requires sites to be included if they have an area of at least 0.25 hectares or is capable of supporting at least 5 dwellings. This suggests the threshold is a gross figure. 

However, Schedule 2 of the Regulations requires sites on the BLR to set out the minimum net number of dwellings which, in the authority’s opinion, the land is capable of supporting. 

This is an important distinction as there are several sites – all extant permissions – which are less than 0.25 hectares, and permit 5 or more dwellings gross but less than 5 dwellings net. Hence the decision to enter these sites onto the BLR hinges on whether we assume the 5 dwelling threshold is net or gross. 

Islington have assumed that the Regulations refer to the gross figure in terms of assessing capability under Regulation 4, although a site’s net figure is used for the ‘MinNetDwellings’ column. The council will monitor changes to guidance and other boroughs BLRs for best practice, and may revert to a net figure in future in terms of assessing sites against the Regulations.”

Islington identifies all of the sites on its register as in unknown ownership:
The BLR identifies all sites as unknown ownership, which reflects the lack of access to up-to-date Land Registry records for these sites. Islington will aim to secure ownership data for sites on future iterations of the BLR.”
These approaches are not untypical and it is underwhelming. DCLG will need to turn the thumbscrews in time for the first annual update of the registers if this process is going to do anything other than round up the usual suspect sites. 
The formatting does at least allow for some useful data gathering, such as this map of London brownfield sites.

Barton Willmore have carried out some interesting analysis as to the numbers of homes identified by the Manchester authorities in their register. 

Of course one of the benefits of finding your land within part 1 of the register is the idea that you will be able to apply for “permission in principle” as a supposedly quick route to planning approval. However this is only relevant if the site is very small, given that the cap is nine dwellings – and given that the minimum size for inclusion on the register is five dwellings this is all pretty niche. Be that as it may, the Town and Country Planning (Permission in Principle) (Amendment) Order 2017 was laid before Parliament on 21 December 2017 and will come into force on 1 June 2018. The order sets out the procedure for applying for PiPs. Lichfields’ 2 January 2018 blog post Take a chance on me: what we know about permission in principle on application is a good summary, also covering the fee rates for applications. 

On reading my April 2017 blog post again, I was surprisingly optimistic about the brownfield land registers. Nine months on, I suppose at least we now have the initial registers in place but surely now we need to see:
– greater engagement between land owners and LPAs so as to begin to use the process to unlock sites which are not already in play.

– consultation in relation to moving appropriate sites onto part 2 so that they secure automatic permission in principle (and without the nine units cap there is in relation to part 1, although they must be below the threshold for EIA).

– a real incentive for development of sites on the register, including supportive policies in the forthcoming revised NPPF. 

Simon Ricketts, 5 January 2018
Personal views, et cetera

Planning Law In 2018: This Is Not A Love Song

This is not a proper simonicity blog post but a quick review of the year that was 2017, followed by a comment-free look at 2018, which promises, conversely, to be the year of the review.
2017: review of the year

To use the popularity or otherwise of simonicity blog posts during the year as a proxy, these were some of the main issues that engaged us:
NPPF Paras 49 & 14: So What Is The Supreme Court Really Saying? (1,588 views) (10 May 2017)
20 Changes In The Final Version Of The London Mayor’s Affordable Housing & Viability SPG (731 views) (20 August 2017)
Viability Assessment Is Not A Loophole, It’s A Noose (707 views) (4 November 2017)
Housing Needs: Assessed Or Assumed? (694 views) (20 September 2017)
Five Problems With Neighbourhood Plans (565 views) (19 February 2017)
Green Belt Policy: Will It Change?  (520 views) (11 November 2017)
Money For Nothing? CPO Compensation Reform, Land Value Capture (509 views) (20 May 2017)
Courts Interpret NPPF Paras 14, 133/134, 141 (But Couldn’t It Be Clearer In The First Place?) (492 views) (8 July 2017)
Slow Train Coming: Strategic Rail Freight Interchanges In The South East (442 views) (6 May 2017)
The New EIA Regulations (357 views) (29 April 2017)
2018: year of the review?
The policy agenda for the coming year includes:
* the Government’s green paper on social housing, announced by Sajid Javid in September 2017, which he described as a “wide-ranging, top-to-bottom review of the issues facing the sector, […] the most substantial report of its kind for a generation“. 
 • recommendations from a review panel, chaired by Sir Oliver Letwin “to explain the significant gap between housing completions and the amount of land allocated or permissioned, and make recommendations for closing it”. An interim report is expected for the Government’s Spring statement in 2018 and full report by the time of the Autumn budget in 2018. 

 • the Labour party’s review of the planning system, “People and Planning”, announced by Roberta Blackman-Woods at its 2017 party conference.

 • Nick Raynsford’s review for the Town and Country Planning Association “to identify how the Government can reform the English planning system to make it fairer, better resourced and capable of producing quality outcomes, while still encouraging the production of new homes.” A report is to be formally presented at all major party conferences in autumn 2018.

 • a revised version of the National Planning Policy Framework for consultation in the Spring of 2018 with a final version in the Summer.

 • a consultation process in Spring 2018 on detailed proposals to reform the Community Infrastructure Levy.

* further implementation of existing legislation as well as an amendment to the General Permitted Development Order to give deemed permission (subject to criteria and limitations yet to be spelt out) to the demolition of existing commercial buildings and their replacement with residential development.
Away from England:
* The Law Commission is consulting until 1 March 2018 on proposals to simplify and consolidate planning law in Wales at the request of the Welsh Government, which is drafting a planning code to consolidate existing planning legislation. 
* The Planning (Scotland) Bill was introduced into the Scottish Parliament on 4 December 2017, following an independent review of the system. As well as progress in 2018 on the Bill, which proposes wide-ranging changes to the planning process in Scotland, we can also expect an amended version of Scotland’s National Planning Framework.

All of this is going to take some unpacking.
Happy new year and thanks for continuing to read, comment, share and follow. Let’s continue to join the dots and call out the spin within this increasingly diffuse policy area. Not a love song – more of a wail…
Simon Ricketts, 30 December 2017
Personal views, et cetera

The Age Of Reasons

Two recent cases have considered the extent to which decision-makers in relation to planning matters are under a duty to give reasons for their decisions. This has never been an easy question and the answer has practical consequences because:
 – for decision-makers, articulating reasons is time consuming and sometimes not to easy to get right

– for those benefiting from a decision, there is the risk that the decision is opened up for legal challenge if those reasons appear to be flawed

– for those objecting to a decision, without reasons being given to explain how it was reached, legal challenge, or even proper scrutiny, is made much more difficult. 

There is also often a dilemma on the part of decision-makers because if reasons are volunteered, even if not required, they need to be rational and can render a decision susceptible to challenge, which would not have been if no reasons were given. 
Dover
Lord Carnwath’s Supreme Court’s judgment in Dover District Council v CPRE Kent (6 December 2017) dismissed an appeal from the Court of Appeal ruling that I blogged on last September in Avoiding Dover-type reasons JRs where a planning permission for a major development proposal had been quashed that had been resolved by councillors to be approved against the recommendation of their officers, who wished substantially to reduce its scale due to perceived effects on an Area of Outstanding Natural Beauty and an ancient monument. In granting permission to appeal, the Supreme Court had indicated that it “would wish to consider generally the sources, nature and extent of a local planning authority’s duty to give reasons for the grant of planning permission“.

In a nutshell, the main implication of the case is that even where there is no statutory requirement to give reasons for granting planning permission, it is now prudent to assume that reasons should always be given by a local planning authority, and particular care is needed where the decision is not fully in accordance with the reasoned recommendations made to the authority by its planning officers. 
The judgment itself starts:
“1. When a local planning authority against the advice of its own professional advisers grants permission for a controversial development, what legal duty, if any, does it have to state the reasons for its decision, and in how much detail? Is such a duty to be found in statutory sources, European or domestic, or in the common law? And what are the legal consequences of a breach of the duty? “
The judgment does not confine itself to that question but ranges widely over various decision-making procedures:
“23. The statutory rules relating to the giving of reasons are all to be found in subordinate legislation. It is hard to detect a coherent approach in their development. 

The main categories are: 

i) Secretary of State decisions (including those delegated to inspectors) – 

a)  following an inquiry or hearing; 


b)  on written representations. 


ii)  Decisions by local planning authorities – 

a)  Refusing planning permission or imposing conditions; 


b)  Granting permission; 


c)  Officer decisions under delegated powers. 

iii)  Decisions (at any level) on applications for EIA development.

Working through these one by one:

In relation to appeals determined by inquiry or hearing, there is a specific statutory duty upon the Secretary of State and his inspectors to give reasons for their decisions. 
There is no corresponding rule in relation to written representations appeals, although it is the practice for a fully reasoned decision to be given, giving rise in practice to an enforceable duty. 
When a local planning authority refuses planning permission there is a statutory requirement that the authority must in their decision notice state “clearly and precisely their full reasons”
Aside from a blip between 2003 and 2013 (when there was legislation requiring authorities to include on their decision notice “a summary of their reasons for the grant of permission” and “a summary of the policies and proposals in the development plan which are relevant to the decision“), there is no statutory requirement for local planning authorities to give their reasons for granting planning permission, save that:
– since 2014, in the case of officers’ delegated decisions there has been a duty by virtue of the Openness of Government Bodies Regulations 2014

– in relation to EIA development, decision-makers must not grant planning permission “unless they have first taken the environmental information into consideration” and “they shall state in their decision that they have done so“. 

As for the necessary standard of reasons, Lord Carnwath sets out the famous passage of Lord Brown in South Buckinghamshire District Council v Porter (2004):
“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.” 
Lord Carnwath explains that even where there is no statutory duty to give reasons, in the interests of transparency (and with reference to, for instance, the requirements of the Aarhus Convention) a common law duty arises upon local planning authorities to give reasons (to that exacting standard) where the circumstances justify it. What circumstances? That is where the judgment is more problematic. The court approves the approach taken by the Court of Appeal earlier this year in Oakley v South Cambridgeshire District Council (15 February 2017) where it held that a duty did arise in the particular circumstances of that case: where the development would have a “significant and lasting impact on the local community”, and involved a substantial departure from Green Belt and development plan policies, and where the committee had disagreed with its officers’ recommendations. 
I don’t find the following passage in Lord Carnwath’s judgment helpful in drawing any practical dividing line between situations where reasons will or will not need to be given for departing from officers’ recommendations, which leads me to the conclusion that the only safe assumption is that they will now always need to be given (to the South Bucks v Porter standard):
“As to the charge of uncertainty, it would be wrong to be over-prescriptive, in a judgment on a single case and a single set of policies. However it should not be difficult for councils and their officers to identify cases which call for a formulated statement of reasons, beyond the statutory requirements. Typically they will be cases where, as in Oakley and the present case, permission has been granted in the face of substantial public opposition and against the advice of officers, for projects which involve major departures from the development plan, or from other policies of recognised importance (such as the “specific policies” identified in the NPPF – para 22 above). Such decisions call for public explanation, not just because of their immediate impact; but also because, as Lord Bridge pointed out (para 45 above), they are likely to have lasting relevance for the application of policy in future cases.”
The judgment certainly reinforces the care that needs to be taken by an authority where a decision is taken to grant planning permission against officers’ recommendations, if judicial review is to be avoided. It also risks delaying the taking of such decisions, referring to the “important legal principle that a decision-maker must not only ask himself the right question, but “take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly” (Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1065B). That obligation, which applies to a planning committee as much as to the Secretary of State, includes the need to allow the time reasonably necessary, not only to obtain the relevant information, but also to understand and take it properly into account.”

If members are now going to depart from officers in resolving to grant permission, or in their reasons for doing so, in most cases it may now be prudent for the application to return to a subsequent committee meeting for reasons to be properly formulated. 
Save
The Dover judgment confines itself to decisions as to whether to approve or refuse planning applications but of course there are many other important decisions within the development management process. Lang J’s judgment in Save Britain’s Heritage v Secretary of State (29 November 2017) concerned a challenge by Save Britain’s Heritage to the decision by the Secretary of State not to call in for his own determination the Paddington Cube application, which had been resolved to be approved by Westminster City Council.
She sets out the statutory position as follows:
“19. There is no statutory duty to give reasons for not calling in an application. However, the Town and Country Planning (Development Management Procedure)(England) Order 2015 envisages that reasons may be given when the minister decides to call in an application. By article 17, if an application is called in, the local planning authority is required to serve on the applicant a notice “setting out the terms of the direction and any reasons given by the Secretary of State for issuing it“.

Save relied on two grounds for their challenge:

“Ground 1. The Claimant submitted that the Defendant’s decision was unlawful because he failed to give reasons for not calling in the applications, in breach of the Claimant’s legitimate expectation that reasons would be given. The legitimate expectation arose from a change in practice, announced in a Green Paper and in Parliament in December 2001. Thereafter, ministers began to give reasons for not calling in planning applications, when previously they had not done so.”

“Ground 2. Alternatively, the Claimant submitted that the court should find that there was a general common law duty to give reasons under section 77(1) TCPA 1990
Lang J reaches the conclusion that where there is no statutory duty, government practice can change: there was previously a government policy to give reasons but “…in February 2014, in the course of preparation for the High Court case of Westminster City Council v Secretary of State for Communities and Local Government [2014] EWHC 708 (Admin), a departmental decision was made to cease the practice of giving reasons.” Accordingly she could not “accept Mr Harwood QC’s submission that the practice of giving reasons remains in force because it has not been formally and publicly revoked by a ministerial statement or published policy document. It is a fundamental principle of public law that public bodies cannot lawfully fetter the future exercise of their discretion under statutory powers, by adopting policies which cannot be changed.”
The 2014 case was of course the challenge to the decision not to call in the Elizabeth House redevelopment application that had been resolved to be approved by the London Borough of Lambeth. In setting out his reasons for not intervening (even though there was no statutory requirement to give reasons), the then Secretary of State made a number of errors and the challenge only narrowly failed on the strange basis that the reasoning was so bad that it should not be taken as a formal attempt to give reasons, for which there was no statutory requirement:
Mr Cameron understandably expressed surprise that it was said that the letter was so obviously wrong that the defendant could not have meant what is set out in it. However, I am satisfied that regrettably that is the case. The letter cannot be regarded as one which was intended to give reasons. The defendant was relying on his right not to give reasons and the letter must be read accordingly. It is plain when the advice to him is seen that he could not have been unaware of nor could he have misunderstood his policy. It follows that the first three grounds relied on must fail since in addition there is no question of giving reasons. While it may be that it would be desirable if the defendant were required to give reasons why he decided not to call-in in a case which did meet the criteria for call-in but it is not open to me in the light of the existing authorities to impose such a duty.” (Collins J)
It is interesting to consider Collins J’s comment in that final sentence, and Lang J’s reasoning, in the light now of Lord Carnwath’s judgment. Lang J distinguished decisions in relations to planning applications from decisions not to call in applications in the following way:
“I accept the submissions of the Defendant and the Second Interested Party that Oakley is distinguishable since a call-in decision is a very different type of decision to a decision by a local planning authority to grant planning permission. A call-in decision is in essence a procedural decision by the Secretary of State on whether to intervene in the planning process; it does not result in the grant of any substantive rights.”
Wouldn’t it be clearer if we had a comprehensive statutory framework that dealt with these basic questions?

Simon Ricketts, 9 December 2017
Personal views, et cetera