New Planning Legislation! A Detailed Guide

The Business and Planning Bill was introduced to the House of Commons on 25 June 2020 and the Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020 were laid before Parliament on 24 June 2020, and have passed into law.

The following is a summary prepared by my Town colleagues Victoria McKeegan, George Morton Jack and Meeta Kaur. I will leave any commentary as to the implications for another week.

Summary

The Bill contains temporary provisions to facilitate the extension of the duration of certain planning permissions and listed building consents. This ensures that relevant permissions and consents will remain extant, enabling development to commence following delays caused by Covid-19. As well as extending the time limit for permissions and consents expiring between enactment of the new provisions and 31 December 2020, these measures also have retrospective effect, facilitating the revival of permissions which expired since 23 March 2020, subject to an ‘additional environmental approval’. The local planning authority may only grant such approval if it is satisfied that EIA and habitats assessments remain up to date. In all cases, the time limits for commencing development are extended until 1 April 2021.

The Bill introduces a fast-track planning application process for the temporary variation of both planning conditions limiting construction site working hours and documents approved pursuant to planning condition containing such limitations. The fast-track process is facilitated through a requirement for the local planning authority to respond to the application within 14 days from the day after submission, and deemed approval in the event of no response.

The Bill also introduces measures introducing flexibility for the Planning Inspectorate to use more than one of the procedures to determine planning appeals in-combination. Appeals could take a hybrid form, combining elements of written representations, hearings and planning inquiries.

The final planning measure affords the Mayor of London temporary flexibility to make the London Plan available for inspection by appropriate electronic means, rather than having to make copies available for inspection at the Greater London Authority’s offices and to distribute copies when requested.

The Regulations amend permitted development rights (“PDR”) – the rights under the Town and Country Planning (General Permitted Development) (England) Order 2015 (the GPDO) that effectively grant planning permission for specific types of development with no need for a planning application, although subject to prior approvals from the local planning authority (LPA) – and certain advertising and other regulations.

The principal changes to PDR are:

o a new requirement for provision of adequate natural light where PDR are exercised for changes of use to housing. This provision relates specifically to all habitable rooms, and is intended to improve the quality of homes delivered under existing PDR for changes of use to housing;

o new PDR for temporary use of land, including temporary use of land by developers for any purpose subject to several restrictions (with this right in force from 25 June 2020 to 31 December 2020), and by local authorities for holding a market (with this right in force from 25 June 2020 to 23 March 2021);

o new PDR for construction of new homes on detached blocks of flats, where the permitted development consists of works for construction of up to two additional storeys of new dwellinghouses (meaning flats for this new PDR), immediately above purpose-built detached block of flats of three or more above-ground storeys. This new PDR permits various related works including reasonably necessary engineering works to construct the additional storeys and the new flats, and is subject to several restrictions.

The PDR amendments also include some minor, more technical or clarificatory updates to the GPDO.

The Regulations include some minor amendments to advertising and compensation regulations.

The Regulations come into force in two stages: first, on 25 June 2020 (including changes to PDR for temporary use of land); and second, on 1 August 2020 (including changes to PDR for residential development).

In detail

THE BILL

1.1 Part Three of the Bill relates to planning. This main section 1 provides a brief summary of those planning matters.

Automatic extension of planning permissions

1.2 The Bill introduces three new sections to the TCPA 1990 on a temporary basis up until 1 April 2021. New section 93A modifies any condition attached to a planning permission imposing a time limit for the commencement of development which is due to expire between the day on which the enabling provision of the Business and Planning Act (the “Act”) comes into force and 31 December 2020. The time limit for the commencement of development is automatically extended to 1 April 2021.

1.3 New section 93B has the same effect as section 93A (extending the time period for implementation until 1 April 2021) for any planning permission subject to a condition that the development must be commenced by a time falling between 23 March 2020 and the day on which the enabling provision of the Act comes into force, if an ‘additional environmental approval’ is granted or deemed to be granted in respect of that permission. As such, it is section 93B which creates retrospective effect, effectively reviving planning permissions which expired during the lockdown period (subject to ‘additional environmental approval’).

1.4 As regards the ‘additional environmental approval’, an application must be made to the local planning authority and contain sufficient information to enable it to determine whether approval should be granted . There is provision for deemed approval of the application within 28 days (or a longer agreed period) if the local planning authority does not issue its decision within this period. The local planning authority may only grant approval if the ‘EIA and habitats requirements’ are met. The EIA requirement is met if either the development is not EIA development or the development remains the subject of an up-to-date EIA assessment. The habitats requirement is met if the development would not presently require an appropriate assessment (if planning permission were being granted for the development now) or, if it would, the development was previously subject to assessment which ascertained that the development would not adversely affect the integrity of a European site / offshore marine site and the local planning authority is satisfied that the assessment remains up to date.

1.5 An ‘additional environmental approval’ is absolute and may not be granted subject to condition. Further, no ‘additional environmental approval’ may be granted following 31 December 2020, unless granted on an appeal lodged on or before that date. There is a right of appeal against a refusal of an ‘additional environmental approval’.

Automatic extension of outline planning permissions

1.6 The Bill introduces further new sections to the TCPA 1990 in relation to outline planning permissions, which have similar effect to those mentioned above in relation to full planning permissions. Again, the new sections are introduced on a temporary basis up until 1 April 2021.

1.7 New section 93D modifies any condition attached to an outline planning permission that imposes a time limit for the submission of an application for approval of any reserved matter which falls between 23 March 2020 and 31 December 2020. The time limit for submission of such applications is extended to 1 April 2021.

1.8 New sections 93E and 93F have the same effect as new sections 93A and 93B, but apply in relation to outline planning permissions. They extend the time period by which development must be begun to 1 April 2021 for those outline planning permissions due to expire between the date on which the enabling provision of the Act comes into force and 31 December 2020. Further, the extension of time for implementation and the ‘additional environmental approval’ process is the same as for full planning permissions in the case of outline planning permissions which expired between 23 March 2020 and the date that the relevant enabling provision of the Act comes into force.

Automatic extension of listed building consents

1.9 The Bill introduces a new section 18A to the Planning (Listed Buildings and Conservation Areas) Act 1990. This modifies any condition attached to a listed building consent which imposes a time limit for the commencement of works which expires between 23 March 2020 and 31 December 2020. The time limit for commencement in such cases will be extended to 1 April 2021. Again, the temporary modifications expire on 1 April 2021.

1.10 The Secretary of State may make regulations to extend the time periods set out in these new sections facilitating the automatic extension of planning permissions and listed building consents, along with their expiry date.

Further measures

Modification of conditions relating to construction working hours

1.11 The Bill introduces three new sections to the TCPA 1990 in order to facilitate a new fast-track application process for the temporary variation of planning conditions relating to construction site working hours. The Explanatory Notes to the Bill state that the new process is designed to enable the facilitation of safe construction working practices in line with social distancing guidance issued by the Government. The fast-track process expires on 1 April 2021.

1.12 New section 74B applies to planning permissions which impose a condition specifying the times during which construction activities may be carried out or where a similar restriction is contained in a separate document approved by a local planning authority pursuant to a planning condition. It allows an applicant to apply to modify the restrictions imposed either by way of condition of approved document so as to allow construction activities to be carried out for a longer period than permitted on a particular day or on a day which is currently not permitted.

1.13 The application must specify the date from which it is proposed that the modifications should take effect which can be no earlier than the end of the period of 14 days from the day after submission of the application. Such an extension may only be for a temporary period not extending beyond 1 April 2021.

1.14 New section 74C provides that the local planning authority can approve the application, refuse the application or determine, with the agreement of the applicant, different modifications or alternative dates during which they will have effect. There is provision for deemed approval of the application if the local planning authority does not respond within a period of 14 days from the day after submission of the application, hence this being termed a ‘fast-track’ process. There is a right of appeal against refusal of an application under the new procedure.

Procedure for certain planning proceedings

1.15 The Bill amends the power of the Secretary of State to determine which procedure (i.e. written representations, hearing or local inquiry) should be adopted in various appeal proceedings. The amendments effectively facilitate a combination of these proceedings and are permanent. They are described in the Explanatory Notes as providing flexibility for a Planning Inspector to use more than one procedure to determine planning appeals which is required to enable the Planning Inspectorate to deal with cases quickly and effectively during the coronavirus pandemic. However, they are also described as providing ‘ongoing efficiencies to the work of the Planning Inspectorate’. The amendments apply to section 319A(2) of the TCPA 1990, section 88D(2) of the LBC Act and section 21A(2) of the Planning (Hazardous Substances) Act 1990.

Electronic inspection of spatial development strategy

1.16 The Bill temporarily modifies the effect of section 43 of the Greater London Authority Act 1999 until 31 December 2020. Section 43 of the GLAA requires the Mayor of London to take steps to give adequate publicity to various strategies and to make the current versions available for public inspection at the GLA’s offices, as well as provide copies where requested. The amendments apply solely in relation to the Mayor’s spatial development strategy, namely the London Plan. In respect of the London Plan, the Bill removes the requirement to make the current version of the London Plan available for inspection and to provide copies if a copy of the current version of the strategy is available for inspection free of charge by appropriate electronic means.

Commencement

1.17 The Bill provides that the permission extension changes would come into force 28 days after the Act is passed, the construction site working hours proposal would come into force six days after the Act is passed, while the appeal procedure flexibility and GLAA amendments would come into force on the day on which the Act is passed.

What’s Next?

1.18 MPs will next consider all stages of the Bill in one day on Monday 29 June 2020. The Government is aiming for it to pass into law by 4 July 2020.

2. THE REGULATIONS

2.1 This main section 2 provides a brief summary of the Regulations’ amendments.

Definitions of “dwellinghouse” and “flat” (Regulation 3, in force on 1 August 2020)

2.2 Regulation 3 updates article 2 of the GPDO’s definitions of “dwellinghouse” and “flat” applying to the new “Class A” PDR (“New dwellinghouses on detached blocks of flats”) in Schedule 2, Part 20 of the GPDO (which is introduced by Regulation 22, for which see the comments below on Regulation 22).

Extension of determination period for prior approval applications (Regulation 4, in force on 1 August 2020)

2.3 Regulation 4 amends article 7 of the GPDO (“Prior approval applications: time periods for decision”). It allows an applicant and an LPA to agree a period longer either than 8 weeks for the authority to determine prior approval applications, or than a time period otherwise specified in the GPDO.

New prior approval fee (Regulation 5, in force on 1 August 2020)

2.4 For the existing PDR “Enlargement, improvement or other alteration of a dwellinghouse” (GPDO Schedule 2, Part 1, Class A), in relation to development of certain dwellinghouses where prior approval is required for a larger single storey rear extension, there is a new a prior approval fee (which is set out in the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012).

Additions to roof of a dwellinghouse (Regulation 6, in force on 1 August 2020)

2.5 For the PDR “additions etc to the roof of a dwellinghouse” (GPDO Schedule 2, Part 1, Class B), in relation to alteration of a house’s roof, a rear or side extension now includes an original projection or a subsequent extension of the house that extends from the rear or side of the principal part of the original house.

Limit on new PDR for new dwellinghouses (Regulations 5 to 12, in force on 1 August 2020)

2.6 Regulations 5 to 12 amend PDR under Schedule 2, Part 1 of the GPDO.

2.7 They operate to limit the new “Class A” PDR (“New dwellinghouses on detached blocks of flats”) in Schedule 2, Part 20 of the GPDO (for which see our comments below on Regulation 22).

2.8 Regulations 5 to 12 ensure that a new home built under that new “Class A” PDR cannot use PDR under Schedule 2, Part 1 of the GPDO (“Development within the curtilage of a dwellinghouse”).

2.9 They do so in relation to the following classes in Schedule 2, Part 1:

(a) Class A – Enlargement, improvement or other alteration of a dwellinghouse;

(b) Class B – additions etc to the roof of a dwellinghouse;

(c) Class C – other alterations to the roof of a dwellinghouse;

(d) Class D – porches;

(e) Class E – buildings etc incidental to the enjoyment of a dwellinghouse;

(f) Class F – hard surfaces incidental to the enjoyment of a dwellinghouse;

(g) Class G – chimneys, flues etc on a dwellinghouse; and

(h) Class H – microwave antenna on a dwellinghouse.

Adequate natural light in homes (Regulations 13 to 19 and 27, in force on 1 August 2020)

2.10 To improve the quality of homes delivered under existing PDR for changes of use to housing, the Regulations introduce a new requirement for provision of adequate natural light in all habitable rooms (defined as “any rooms used or intended to be used for sleeping or living which are not solely used for cooking purposes, but does not include bath or toilet facilities, service rooms, corridors, laundry rooms, hallways or utility rooms”).

2.11 This requirement applies to development under the following change of use classes under Schedule 2, Part 3 of the GPDO:

(a) Class M – retail, takeaways and specified sui generis uses to dwellinghouses;

(b) Class N – specified sui generis uses to dwellinghouses;

(c) Class O – offices to dwellinghouses;

(d) Class PA – premises in light industrial use to dwellinghouses; and

(e) Class Q – agricultural buildings to dwellinghouses.

2.12 The new requirement for provision of natural light involves, as part of the prior approval application process, mandatory submission to the LPA of design details, in a floor plan indicating the dimensions and proposed use of each room, the position and dimensions of windows, doors and walls, and the elevations of the dwellinghouses. Further (under Regulation 18), “the local planning authority must refuse prior approval if adequate natural light is not provided in all the habitable rooms of the dwellinghouses”.

2.13 Regulation 27 has transitional provisions accounting for where developers, as of 1 August 2020, have already submitted a prior approval application in respect of Classes M, N, O, PA and Q as above. These transitional provisions ensure that any such applications submitted before 1 August 2020 will be determined in accordance with PDR in force before that date. Regulation 27 also covers certain circumstances where a developer may, after 1 August 2020, continue to rely on the PDR in force before that date.

2.14 The same requirement for provision of natural light in respect of Classes M, N, O, PA and Q as above applies to the new “Class A” PDR in Schedule 2, Part 20 of the GPDO, for which see our comments below on Regulation 22.

Additional temporary use of land (Regulation 20, in force on 25 June 2020)

2.15 Regulation 20 creates a new PDR for “additional temporary use of land” (as the new “Class BA” in Schedule 2, Part 4 of the GPDO). This new right permits temporary use of land for any purpose.

2.16 There are the following additional points to note in relation to use of land under the new right:

(a) the right is in addition to use under the existing Schedule 2, Part 4, Class B PDR for temporary use of land;

(iii) the right includes the right to place on the land any moveable structure (such as a stall or a marquee) for the purposes of the permitted use;

(b) any use of land for any purpose must be for not more than 28 days in total during the period 1 July 2020 to 31 December 2020; of those 28 days, no more than 14 days in total may be for the of (i) holding a market, (ii) motor car and motorcycle racing including trials of speed, and practising for these activities;

(c) development is not permitted if the land in question is a building or is within the curtilage of a listed building; if the use of the land is for a caravan site; if the land is, or is within, a site of special scientific interest and the use of the land is for: (i) motor car and motorcycle racing including trials of speed or other motor sports, and practising for these activities; (ii) clay pigeon shooting; or (iii) any war game, or if the use of the land is for the display of an advertisement;

(d) the right will cease to have effect from 1 January 2021.

PDR for local authority markets (Regulation 21, in force on 25 June 2020)

2.17 The Regulations introduce a new PDR “Class BA” to part 12 of Schedule 12 of the GPDO, for local authorities to use land for holding a market (including provision of any moveable structure related to the market use). This PDR lasts until 23 March 2021.

PDR for Construction of new homes on detached blocks of flats (Regulation 22, in force on 1 August 2020)

2.18 This PDR follows from the MHCLG consultation “Planning Reform: Supporting the high street and increasing the delivery of new homes” (October 2018).

2.19 The Regulations introduce a new PDR to Schedule 2 of the GPDO inserting a new Part 20 Class A. It allows development consisting of works for construction of up to two additional storeys of new dwellinghouses (which means flats for this new PDR), immediately above purpose-built detached block of flats of three or more above-ground storeys.

2.20 It also permits, in connection with this, the following works:

(a) reasonably necessary engineering works to construct the additional storeys and the new flats;

(b) replacement of existing or installation of additional rooftop plant reasonably necessary for the new flats;

(c) Construction of safe access and egress including additional external doors or staircases to escape fire;

(d) Construction of storage, waste or other ancillary facilities reasonably necessary for the new flats.

2.21 There are limitations on these connected works, as well as a significant number of other limitations which render the PDR unavailable, including those in the following list.  Hence, development is not permitted if:

(a) the permission to use any building as a dwellinghouse was granted by PDRs set out in any of classes M, N, O, P, PA or Q of the GPDO, which are those that permit changes of use from various uses to residential (and includes the contentious office to residential PDRs);

(b) the building was constructed before 1 July 1948 or after 5 March 2018 (the latter being the date on which the government first announced its intention to introduce the upward extension PDR);

(c) the extended building would be greater than 30m high;

(d) it does not comply with limitations on floor to ceiling heights of the additional storeys and the overall height of the roof of the extended building;

(e) the site on which the building is located is or forms part of a conservation area, National Park, AONBs, or SSSI, a listed building or a scheduled monument or land within their curtilage.

2.22 The PDR is also conditional on a number of matters which include the following:

(a) before beginning the development prior approval must be sought as to the following impacts: transport and highways, air traffic and defence assets, contamination and flooding risks, external appearance, provision of adequate natural light in all habitable rooms and amenity of existing and neighbouring buildings including overlooking, privacy and loss of light and impacts on protected views.

(b) the development must be completed within 3 years and the LPA must be notified of completion;

(c) a report must be submitted to the LPA setting out how the construction will be managed.

2.23 There is a specific procedure set out for applications for prior approval for this PDR which includes a list of information that must accompany the application and the bodies that must be consulted on for the purposes of the specified impacts (see (a) above).  The LPA must publicise the application by way of site notice and notice to owner/occupiers of the existing building and neighbours.

2.24 It is worth noting that applications must be accompanied by detailed plans that show (amongst other things) the position of the windows and doors and the LPA must refuse prior approval if adequate natural light is not provided in all the habitable rooms.

2.25 The LPA can require further information in order to determine the application which may include assessments of impacts or risks or how those may be mitigated having regard to the NPPF.  When determining the application the LPA must have regard to representations received in response to consultation and the NPPF so far as is relevant to the prior approval application, in the same way as if it were a planning application.

2.26 The LPA must determine a prior approval application within 8 weeks but unlike some other PDRs there is no deemed approval if the LPA fails to issue a decision within that period.  There is however a right of appeal for non-determination. The development must not begin before prior approval is received and must be carried out in accordance with the approved details.  Prior approval can be granted unconditionally or subject to conditions reasonably related to the subject matter of the approval.

2.27 The new flats may only be used for Class C3 residential purposes and do not benefit from any of the existing PDRs for dwellinghouses in Part 1 of the GPDO.

2.28 This new PDR can be withdrawn (by way of a direction under article 4 of the 2015 Order), and as a result the Regulations amend “The Town and Country Planning (Compensation) (England) Regulations 2015” so as to limit a LPA’s compensation liability in the event it issues an article 4 direction.

2.29 The Planning Practice Guidance may yet be updated to reference this new PDR but no update has been issued at the time of writing.  CIL will be payable on the new floorspace and, in accordance with the existing PPG, a LPA can require planning obligations, but the PPG currently requires that these should be limited to matters requiring prior approval and should not for example seek contributions for affordable housing.

Advertising (Regulations 23 and 24, in force on 1 August 2020)

2.30 Regulations 23 and 24 amend the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 in order to correct the Town and Country Planning Permitted Development, Advertisement and Compensation Amendments) (England) Regulations 2019. They do so by means of inserting definitions of “electronic communications apparatus”, “electronic communications service” and “telephone kiosk”.

Compensation (Regulations 25 and 26, in force on 1 August 2020)

2.31 See the comments above on the Town and Country Planning (Compensation) (England) Regulations 2015 in relation to Regulation 22.

What next?

2.32 The Explanatory Memorandum to the Regulations notes in relation to the new PDR for homes on detached blocks of flats (Regulation 22) that “Government also intends to introduce further permitted development rights for building upwards, including for new and bigger homes”.

 Simon Ricketts, 26 June 2020

Personal views, et cetera

Apparent Bias, Unfair Hearings

The continuing to-do about Secretary of State’s admission of “apparent bias” in the Westferry Printworks case got me thinking about other apparent bias cases and the overlap with the right to a fair hearing – basically as an excuse to mention this week’s startling case from the Supreme Court, Serafin v Malkiewicz (Supreme Court, 3 June 2020). All the cases in this bias/unfair hearing area have a gossipy, “you need to have been there”, feel to them, and there are lessons in all of them for all decision-makers.

After all, for all the constant chatter about the rights and wrongs of our planning system, at its very root it needs to be fair, and seen as fair. Aside from a being fundamental principle of our legal system, the right to a fair hearing in front of an independent and impartial decision maker is also given force by way of Article 6 of the European Convention on Human Rights:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…”

Serafin v Malkiewicz

Serafin v Malkiewicz is nothing to do with planning law. It concerns a libel action brought by a litigant in person who found himself against not so much the barrister on the other side but against the judge, Jay J (yes, really, non-lawyers, Jay J). He lost, badly. The Supreme Court judgment, by Lord Wilson attaches a schedule of extracts from the hearing in front of Jay J, which make truly excruciating reading – really and truly, an object lesson in how not to preside over any sort of hearing, let alone in relation to a litigant in person for whom English was not his first language. Imagine an inspector behaving in such a way.

The Supreme Court did not treat the issue in the case as one of potential apparent bias but as to whether the hearing had been fair. It referred to the distinction between the two principles, as described by Hildyard J in M&P Enterprises (London) Limited v Norfolk Square (Northern Square (Northern Section) Limited (High Court, 12 October 2018, namely that whereas “the fairness of a trial required objective judicial assessment, the appearance of bias fell to be judged through the eyes of the fair-minded and informed observer”.

… it is far from clear that the observer would consider that the judge had given an appearance of bias. A painstaking reading of the full transcripts of the evidence given over four and a half days strongly suggests that, insofar as the judge evinced prejudice against the claimant, it was the product of his almost immediate conclusion that the claim was hopeless and that the hearing of it represented a disgraceful waste of judicial resources.”

“… when one considers the barrage of hostility towards the claimant’s case, and towards the claimant himself acting in person, fired by the judge in immoderate, ill-tempered and at times offensive language at many different points during the long hearing, one is driven, with profound regret, to uphold the Court of Appeal’s conclusion that he did not allow the claim to be properly presented; that therefore he could not fairly appraise it; and, that, in short, the trial was unfair. Instead of making allowance for the claimant’s appearance in person, the judge harassed and intimidated him in ways which surely would never have occurred if the claimant had been represented. It was ridiculous for the defendants to submit to us that, when placed in context, the judge’s interventions were “wholly justifiable”.”

The Court of Appeal had similarly concluded that the hearing had been unfair but had only concluded that part of the case be heard again. The Supreme Court went further:

“Lord Reed observed during the hearing that a judgment which results from an unfair trial is written in water. An appellate court cannot seize even on parts of it and erect legal conclusions upon them. That is why, whatever its precise meaning, it is so hard to understand the Court of Appeal’s unexplained order that all issues of liability had, in one way or another, been concluded. Had the Court of Appeal first addressed the issue of whether the trial had been unfair, it would have been more likely to recognise that the only proper order was for a retrial. It is no doubt highly desirable that, prior to any retrial, the parties should seek to limit the issues. It is possible that, in the light of what has transpired in the litigation to date, the claimant will agree to narrow the ambit of his claim and/or that the defendants will agree to narrow the ambit of their defences. But that is a matter for them. Conscious of how the justice system has failed both sides, this court, with deep regret, must order a full retrial.”

Porter v Magill

The classic articulation of the apparent bias test is by Lord Hope in Porter v Magill (House of Lords, 13 December 2001): the “question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”.

Porter v Magill was of course part of the Lady Porter/Westminster City Council “homes for votes” saga. An auditor, John Magill, had been appointed to consider whether “three councillors and three officers had, by wilful misconduct, jointly and severally caused a loss of approximately £31m to the council which they were liable to make good.”

One of the councillors’ grounds of appeal against Mr Magill’s findings of the auditor, John Magill, was on the basis of apparent bias evidenced by the manner in which, ahead of his full inquiry, he had announced his provisional findings:

“A televised announcement was arranged at which the auditor himself appeared and, although he said that his views were provisional, he expressed them in florid language and supported them by reference to the thoroughness of the investigation which he claimed to have carried out. There was a further feature of the event which should have had no place in the middle of a quasi-judicial inquiry. A stack of ring binders on the desk at which the auditor sat bearing the name of his firm for the benefit of the cameras was, ostensibly, under the protection of a security guard: unless it was being implied that the persons under investigation might wish to steal the documents, it is not clear what was the purpose of this posturing.”

The court did not accept that there was apparent bias. In the words of Lord Hope:

“I think that it is plain…that the auditor made an error of judgment when he decided to make his statement in public at a press conference. The main impression which this would have conveyed to the fair-minded observer was that the purpose of this exercise was to attract publicity to himself, and perhaps also to his firm. It was an exercise in self-promotion in which he should not have indulged. But it is quite another matter to conclude from this that there was a real possibility that he was biased…. The auditor’s conduct must be seen in the context of the investigation which he was carrying out, which had generated a great deal of public interest. A statement as to his progress would not have been inappropriate. His error was to make it at a press conference. This created the risk of unfair reporting, but there was nothing in the words he used to indicate that there was a real possibility that he was biased. He was at pains to point out to the press that his findings were provisional. There is no reason to doubt his word on this point, as his subsequent conduct demonstrates. I would hold, looking at the matter objectively, that a real possibility that he was biased has not been demonstrated.”

Broadview Energy

Turning to a case with greater similarities to the Westferry Printworks situation, in Broadview Energy Developments Limited v Secretary of State (Court of Appeal, 22 June 2016) the Court of Appeal deprecated informal lobbying attempts by MPs, in that case Andrea Leadsom MP’s attempts to stop a wind farm scheme, with a conversation in the Commons tea-room and numerous emails from her to the minister, including one referring to her “badgering [him] in the lobby”. Longmore LJ in that case indicated that he “would not endorse that part of the judge’s judgment [at first instance] in which he said that lobbying of Ministers by MPs was part and parcel of the representative role of a constituency MP with its implication that such lobbying was permissible even when the Minister is making a quasi-judicial decision in relation to a controversial planning application. MPs should not, with respect, be in any different position from other interested parties.”

The court’s deprecation fell short of determining that the decision was as a result unlawful. On the specific question of bias:

“Nor do I think it arguable that a well informed observed would consider that there was a real possibility of bias on the part of Mr Hopkins. The well-informed observer would know that it was the responsibility of the relevant Minister to make difficult decisions about controversial projects such as on-shore wind farms. He would also know that sometimes such decisions are, as this one was, finely balanced. He would not think that a Minister’s decision in favour of a vocal body of local objectors supported by their local MP showed any bias against the promoter of the wind farm project. He would accept that the Minister had to make a decision one way or the other and think that the parties should accept the outcome.

Nevertheless the accusation of bias made in this case shows how important the principle is that Ministers making planning decisions should not allow themselves to be lobbied by parties to the planning process or by local MPs. If they do allow it, accusations of bias are all too easily made however unjustified they may be once the proper principles exemplified by Magill v Porter [2002] 2 AC 357 are applied.”

Turning from the position of ministers to that of inspectors:

Turner

Turner v Secretary of State (Court of Appeal, 11 June 2015) was a case where an objector to the proposed redevelopment of the Shell Centre, on London’s south bank, argued that the inquiry inspector had been biased in the way that he had dealt with his case at the inquiry, alleging, as set out in the judgment, that the inspector had curtailed his evidence and submissions and had made adverse procedural rulings.

In determining whether the inspector had acted inappropriately, the Court set out the approach to be followed as follows:

“The notional fair-minded observer would appreciate a number of aspects of the present context: (i) an inspector’s role has a strong inquisitorial dimension, investigating matters in a way which will enable him to report helpfully to the relevant decision-maker, the Secretary of State; with that end in view, it is fair and appropriate for an inspector to seek to focus debate at an inquiry by making interventions to ensure that he is provided with material to assist him in his task; (ii) an inspector has to manage efficiently the conduct of an inquiry within a limited time-frame and involving a range of parties wishing to give evidence, make submissions and participate in cross-examination of witnesses; this may require robust case management in the interests of all participants; (iii) an inspector is entitled to expect, and may legitimately seek to encourage, focused questioning and short and focused answers in the course of cross-examination of witnesses; (iv) the inquiry process provides an inspector with relevant information through a range of media, including written opening statements, examination of plans and the making of detailed closing submissions, as well as through the evidence of witnesses (both by witness statement and orally in cross-examination), and an inspector is expected to have done a good deal of preparation before an inquiry commences and is entitled to seek to focus debate on particular issues in the form which is most likely to provide clarity about what is at stake and assistance for him in writing a report; and (v) as part of his inquiry-management function, and to encourage a focus on what is most likely to assist him in his reporting task, an inspector is entitled to give indications in the course of an inquiry of points which appear to him to be unrealistic or bad and to require concentration on what appear to him to be the real substantive points of contention or where continued debate will be most helpful to him. It is of course possible that an inspector may go too far in robust inquiry management or in closing down debate, so as to give an appearance of bias. But given the expectation that an inspector should be actively managing the inquiry process to ensure that it is efficient, effective and fair to all interested parties, it will be a rare case, as Woolf J observed, in which it is likely that robust inquiry management will be found to have done so.

Another part of the context is the guidance issued by the Planning Inspectorate in the form of “The Inspector’s Code of Conduct”. This sets out principles of conduct for inspectors. Amongst other things, they “should make their decisions and recommendations fairly and in the public interest”; “should not be fettered with pre-determined views and should not judge cases before they have considered the evidence”; “should not be influenced by irrelevant considerations or outside influences when making their decisions and recommendations”; “should avoid unnecessary delay in reaching their decisions and recommendations”; and “should treat each person with dignity and respect”, behaving “at all times with courtesy, patience and understanding, whilst at the same time ensuring that cases are conducted efficiently and effectively.” This guidance is designed to promote best practice. It does not in itself create the standard by which an appearance of bias is to be judged. For example, a lapse in courtesy or patience on the part of an inspector in the course of an inquiry will not in itself give an appearance of bias in the requisite sense. A good deal more than that would be required: cf HCA International Ltd v The Competition and Markets Authority [2015] EWCA Civ 492, in which even a serious element of actual unfairness of treatment of the appellant by the relevant public authority, which misled the appellant at one stage about an aspect of its inquiry, was found not to create an appearance of bias or pre-determination such as to prevent the same personnel in that authority from making a re-determination of matters in contention. (So that we are not misunderstood, and in fairness to the Inspector in the present case, we should add that on the limited evidence which is available we are not persuaded that he behaved discourteously to Mr Turner or anyone else at the inquiry).”

The court dismissed the appeal: “None of the matters relied on by Mr Turner, whether taken individually or together, indicate that there was a real possibility that the Inspector was biased. The Inspector acted properly and without giving any appearance of bias according to the relevant test in Porter v Magill.”

Satnam

Turner was applied in Satnam Millennium Limited v Secretary of State (Sir Duncan Ouseley, 8 October 2019). Satnam challenged the decision by the Secretary of State, on the recommendation of his inspector, to dismiss an appeal in relation a large development proposal in Warrington. Whilst the judge upheld the challenge on other grounds, he rejected a submission that the inspector had showed apparent bias in the way that he conducted the inquiry, as well as the site visit. Again the judgment is a good read as to the facts, particularly paragraphs 112 to 189. Extracts from the PINS manual for inspectors are at paragraphs 190 to 194 and the general legal principles are set out at paragraphs 195 to 206. The judge’s detailed conclusions, in which he rejects the various complaints, are at paragraphs 229 to 254. There are some interesting pointers as to the conduct of hearings and inquiries and as a cheerful point to end on…

Humour is not forbidden:

“The grumbling from Mr Griffiths about a resident giving her evidence in song, followed by the quick interchange over giving evidence in dance and northern humour, rather illustrated my concern about where he was pitching his concern. This was but a moment of light heartedness, essentially initiated by the witness, and briefly responded to by the Inspector. Some Inspectors might have kept silent; but there is nothing in this at all. Not all judges or counsel are humourless automatons either. Although it would avoid some problems if Inspectors were, it could create others at an Inquiry with feelings running high and large numbers of the public attending. This was all very much part of a legitimate judgment about how to run a difficult Inquiry in those venues, with the facilities, and participants there were.”

“I accept that there would have been an impression of familiarity with individuals to whom [the inspector] had spoken on a daily basis, but that does not contrast with how he spoke to the other participants; they were not ignored, their greetings, if any, dismissed. “Banter” is very much in the eye and ear of the beholder. I am not prepared to regard any of it as indicative of possible bias.”

Reading these various cases again, and thinking again about Westferry Printworks, doesn’t so much of this come down to common sense and the facts of each situation rather than the application of any difficult legal concepts? The courts may be surprisingly reluctant at times to intervene (which makes so telling the Serafin ruling, as well as the decision of the government legal department not even to seek to contest Westferry) but decision makers should know what’s not right and, equally importantly, what doesn’t look right.

Simon Ricketts, 6 June 2020

Personal views, et cetera

Stay Alert! A Quick Guide To All Those MHCLG Announcements

On 13 May 2020, MHCLG published:

Guidance: coronavirus planning update

Guidance: Coronavirus compulsory purchase

Guidance: Coronavirus community infrastructure levy

Guidance: construction site working hours Q&A

Guidance: consultation and pre-decision matters

Guidance: plan-making

Guidance: neighbourhood planning

On the same day, the Planning Inspectorate updated its guidance on site visits, hearings, inquiries and events.

On 14 May 2020, the Town and Country Planning (Development Management Procedure, Listed Buildings and Environmental Impact Assessment) (England) (Coronavirus) (Amendment) Regulations 2020 were made and came into force that day. The Regulations were accompanied by an Explanatory Memorandum.

The highlights

Validation and determination of applications for planning permission

No changes have been made to the timescales for determining planning applications. Developers are however encouraged to agree extensions of the period for determination. Local authorities have been urged to give priority to validating urgent COVID-19 related applications for planning permission and associated consents.

Publicising applications for planning permission

Temporary regulations (expiring on 31 December 2020) were made and came into force on 14 May to supplement existing publicity arrangements for planning applications, listed building consent applications and environmental statements for EIA development. There is now flexibility to take other reasonable steps to publicise applications and environmental statements if the usual specific requirements cannot be discharged relating to site notices, neighbour notifications, newspaper publicity or availability of hard copy documents. Steps can include the use of social media and electronic communications and they must be “proportionate to the scale and nature of the development”. Guidance has also been issued on this topic.

Planning Conditions

MHCLG has made it clear that planning conditions should not be a barrier to allowing developers and site operators flexibility around construction site working hours to facilitate safe working. Where only short term or modest increases in working hours are required, LPAs are encouraged to use their discretion to not enforce against a breach of working hours conditions. Where longer term measures or other significant changes are required, applications to amend conditions should be made, which LPAs should prioritise and turn around in 10 days. Requests to work up to 9 pm Monday to Saturday should not be refused without very compelling reasons.

Community infrastructure levy

The existing CIL regulations of course allow charging authorities limited flexibility to defer CIL liability. Amendments will be made to the regulations “in due course” to increase flexibility, but that will still depend upon charging authorities deciding to exercise the new discretion available to them. Authorities will be able to defer payments, temporarily disapply late payment interest and provide a discretion to return interest already charged. However, these changes will only apply to small and medium-sized developers with an annual turnover of less than £45 million. It remains to be seen how this limitation will be addressed in the regulations, for example where a special purpose vehicle, potentially offshore, has assumed liability. The new instalment policies for deferred payments will only apply to chargeable development starting after the changes come into effect, but they are anticipated to apply to “phases“ of the development starting after that date. The announcement on 13 May added that “existing flexibilities and the government’s clear intention to legislate should give authorities confidence to use their enforcement powers with discretion and provide some comfort to developers that, where appropriate, they will not be charged extra for matters that were outside of their control.”

Section 106 planning obligations

Local planning authorities are encouraged to consider the deferral of section 106 obligations, e.g. financial payments. This will require variations to existing section agreements and undertakings. Local planning authorities are encouraged generally to take a “pragmatic and proportionate” approach to the enforcement of section 106 planning obligations

Virtual Committees

These are already enabled, by way of Regulation 5 of the Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020. MHCLG is working with the Planning Advisory Service (PAS) to provide further practical advice on the way these meetings are managed.

Planning Appeals

PINS issued a further update on 13 May. Site visits are being commenced and PINS is considering whether there are types of cases that can proceed without a site visit. The first digital appeal hearing took place on 11 May as a pilot and PINS is aiming for 20 further examinations, hearings and inquiries in May and June. It is also exploring hybrid options – a mix of in person and by video public/telephone hearings and is considering “social distance” events.

Local Plans

MHCLG is working on ways to address the local plans process in order to meet aspirations to have all local plans in place by 2023. In particular, the use of virtual hearings and written submissions is being considered.

Neighbourhood Plans

Regulation 12 of the Local Government and Police and Crime Commissioner (Coronavirus) (Postponement of Elections and Referendums) (England and Wales) Regulations 2020 prevents any neighbourhood planning referendum from taking place until 6 May 2021. Updated guidance was issued in April allowing neighbourhood plans awaiting referendums to be given significant weight in decision making.

Nationally Significant Infrastructure Projects

The government is working with consenting departments to support the continuation of decision-making to minimise the impact of current restrictions on the consideration of DCO applications and the Planning Inspectorate has updated its guidance.

Compulsory purchase orders

There is now pragmatic advice as to the service of documents. Acquiring authorities are encouraged to allow more time for responses to requests for information about interests in land or submitting objections to CPO. There is also encouragement to authorities to act responsibly regarding business and residential claimants, particularly regarding the timing of vesting orders and payment of compensation, which is particularly relevant when considering evictions. Authorities are reminded of their obligation to make advance payments of compensation in accordance with statutory time limits given cash flow difficulties which claimants may currently face.

Concluding remarks

To my mind, this is all welcome and congratulations are due in particular to the relevant civil servants. Of course, there is more to be resolved, for instance the vexed question of extending time limited planning permissions (see my 4 April 2020 blog post Pause Not Delete: Extending Planning Permissions) as well as the Regulations in relation to CIL, but it is good to see this progress. No wonder MHCLG’s Simon Gallagher was prepared to come on this week’s Have We Got Planning News For You!

Whether by serendipity or, now I think about it, of course, good planning, the RTPI published on 15 May 2020 its research paper Pragmatic and prepared for the Recovery: The planning profession’s rapid response to Covid-19. This last week has been a good start.

Simon Ricketts, 16 May 2020

Personal views, et cetera

(Thank you to Town’s Michael Gallimore and Lida Nguyen for allowing me to draw from a client note prepared earlier this week).

There Is No E In Inquiry

As the motivational cliche goes, there is no I in team. That’s as maybe. But, where I = Inquiry, nor is there yet any I on Teams (or on Zoom, on Skype, on BlueJeans, or even on Google Hangouts).

The Planning Inspectorate’s 28 April 2020 update Planning Inspectorate casework continues as first pilot digital hearing to take place in May makes interesting reading:

“We are continuing to issue decisions where we can and 1,625 have been issued across all case types since lockdown restrictions started. Not being able to visit sites and hold public events has, however, clearly had an impact on our ability to process cases and the time it is taking to reach a decision.

As explained in our guidance, to limit the spread of the Coronavirus we have postponed site visits up to the middle of May, as well as most hearing and inquiry physical events where these would otherwise have taken place in May. Our case officers have notified parties of event postponement until further notice. We will be issuing updated information on arrangements for postponed events as soon as practicable in line with latest government advice.

We have been able to progress cases where:

• the physical event was concluded prior to lockdown restrictions;

• no physical event is required to make a decision; or

• a physical event is still further in the future and preparatory activity can continue (e.g. via telephone case conferences).

New cases continue to arrive at normal levels and are being registered and processed as far as possible. As at 23 April, there were 9,591 open cases. In the last three weeks we have seen the number of open cases rise by 337.”

(It is encouraging, in passing, to note that appeals are still being made at normal levels – that is our experience too).

The Planning Inspectorate is anxious to reassure that it is moving quickly to catch up:

• “The first fully ‘digital’ hearing is due to take place on 11 May.

• We are preparing for additional cases to be heard by digital hearings/inquiries in May/early June with a view to scaling up digital events further over June/July.

• We are assessing postponed cases to establish whether they can proceed by digital, traditional or a ‘hybrid’ approach, in order to re-arrange these in due course accordingly.

• A trial of ‘virtual site visits’ is underway involving thirteen Inspectors.

• Five local advisory visits have taken place remotely (critical for helping Local Planning Authorities to progress local plans and reduce the length of examinations).”

But is this fast enough? Can more be done? Could we see a leap forward in the way that planning hearings and inquiries are conducted?

After all, the planning inquiry process has been constantly adapting. Planning inquiries were first introduced in the Housing, Town Planning etc Act 1909 to consider objections to town planning schemes. The right to appeal against a planning decision was introduced in the 1932 Act, and the 1947 Act provided that all appeals were to be determined by public inquiry. Weirdly to us now, the procedures followed and the reasoning for decisions was kept secret until changes were made to implement some of the recommendations of the 1957 Franks Committee on Administrative Justice. We still refer to the three Franks Principles, of openness, fairness and impartiality.

This is what was said by the minister of the time in a 1957 Commons debate on the report:

“I must, however, return to a point I made in the opening of my remarks, that we must not complicate the procedures more than we can help. The great majority of objectors and appellants are small people. Quite a few present their own cases without professional assistance and for most people it is essential that the procedure should be simple, intelligible, quick, and cheap, as well as fair.”

Dear reader, of course we did then complicate those procedures, often through changes made with the best of intentions. When I started practice, there was no advance exchange of proofs of evidence. We all read the documents for the first time as they were being read out by the witness. No rebuttal proofs, no laboriously prepared cross-examinations or written closing submissions. Every procedural step that has been introduced, introducing frontloading of appeal preparation and evidence (good), minimising surprises (good), has by a sidewind elongated and complicated the processes (bad). There may now be a much more forensic and detailed examination of the issues, but where have we left those “small people”?

The Planning Bar is obviously at the sharp end of the current slowdown and has been trying to move things along.

⁃ Various Landmark Chambers barristers published a really excellent paper on 21 March 2020, Fairness and public participation in video or telephone hearings for planning appeals during the COVID-19 crisis

⁃ On 1 April 2020 Kings Chambers put out this statement, Kings Chambers team up with Turley and Pegasus Group to record remote public inquiry test.

It is of course hugely frustrating that the massive improvements to the inquiry appeals system brought about by the Rosewell review (see eg my 25 May 2019 blog post Pace Making: Progress At PINS) have been undone by this pandemic. The Rosewell changes, unlike possibly every previous reform of any aspect of the planning system, did not add complications, but modernised and streamlined it in many ways, with telephone case management conferences and the like now the norm. I assume that everyone saw the interview with Bridget Rosewell on last week’s second episode of Have We Got Planning News For You? Her frustration with the Inspectorate’s present apparent slowness to get virtual hearings and inquiries underway was apparent, talking about the need to “move forward as soon as possible” and extolling the “fairer access” that can be achieved in a “virtual environment”.

We should listen to Bridget.

(Indeed, to go off on a tangent, if I were Secretary of State for the day, I would presently quietly shelve “Planning For The Future” and instead ask Bridget, very nicely, to carry out “Rosewell 2”, this time a review, with similar practical focus, in relation to the planning application process, so as to identify opportunities for simplification and reduction of unnecessary paperwork. Step by step there are surely simple opportunities for improvement. Off the top of my head:

– Recommended word limits for supporting documents such as Planning Statements, Design and Access Statements and Environmental Statements (or application fee linked to size of the documentation)

– Removal of need for multiple hard copies of documents

– Modernisation of publicity requirements

– Recommended word limits for officers’ reports to committee

– Standardisation of wording of planning conditions

– Updated model section 106 agreement template (the Law Society’s current so-called template draft agreement dates from 2010!)

– Updated advice as to the types of application which properly should be dealt with by way of officers’ delegated powers

Do it!)

But of course, moving to virtual appeals, even on a temporary basis, is not easy. The interests of all participants, and potential participants, in the appeals process need to be taken into account. Whilst justice delayed is justice denied, justice has to be both done and be seen to be done.

I was struck by an assertion in the Landmark Chambers paper:

It is safe to proceed on the basis of a presumption that every participant in a planning appeal will have reasonable access to a means of participating in a remote hearing session unless they provide evidence to the contrary. Virtually every household has a telephone, and the vast majority of people have access to a computer or mobile device on which video conferencing is possible.”

This isn’t still true for a few members of my own family (well they all have a land line – but certainly couldn’t be expected to follow proceedings on a telephone). And indeed whilst the chattering classes are currently going on about Zoom and the rest of it, I know that many are finding it very difficult to access or be at ease on these platforms, surrounded by us lawyers and others who inevitably spend much of every day now speaking with a variety of people on screen and unwittingly developing new social norms and cues.

Any procedural solution does needs to meet the three principles set out in the paper:

– The common law requirements of fairness;

⁃ Article 6(1) ECHR – the right to a fair trial in civil cases;

⁃ Article 6 of the Aarhus Convention (“public participation in decisions on specific activities”).

But decisions as to procedure also need to have regard to “protected characteristics” under the Equality Act 2010, which of course include age and disability. Bridget is right that virtual hearings and inquiries would allow many to engage with the process who currently cannot, which is great as long as there are protections to make sure that some are not excluded.

In my view this is perfectly achievable for the majority of hearings and inquiries. I accept that (1) the inquiry process is very different from the court process and we cannot simply “read across” and (2) even in relation to the court process, there were some words of warning this week from the Court of Appeal in a family law case, Re A (Children) (Court of Appeal, 30 April 2020) – see paragraphs 49 to 56. However, let’s analyse the real position:

The only parties entitled to appear at a hearing are the appellant, the local planning authority and defined statutory parties. Everyone else is at the discretion of the inspector. As long as the inspector is confident that there is no third party, from whom the inspector feels he or she should hear, and who cannot participate adequately by some remote means, why should not virtual hearings proceed, as long as the proceedings are able to be viewed remotely (perhaps also with a transcript of what is said – not difficult at all – where there is any doubt as to whether there may be interested parties without adequate screen access)?

At inquiries, the parties only entitled to appear are the appellant, local planning authority, defined statutory parties and those who have (at their own request) become rule 6 parties. Again, if all of those parties are in agreement (with possible adverse costs award consequences for those who unreasonably refuse) and as long as the same approach can be taken in relation to other parties, why cannot inquiries proceed?

Site visits are less of a problem, whether accompanied or unaccompanied, and whether in fact still always needed, in the light of visual material now available.

Furthermore, as long as there are indeed adequate protections for those who should be heard at the hearing and genuinely cannot reasonably be expected to participate remotely, the change to a virtual process has the benefit of opening up access to so many other people. And imagine the benefits in future of being able to offer a “virtual” evening session at the next inquiry at your local town hall? That surely would be participative democracy.

Which is a long way of saying: I agree with Bridget.

Simon Ricketts, 2 May 2020

Personal views, et cetera

Let Me Count The Ways

How unromantic. To my disappointment, that line from Elizabeth Browning’s poem is not followed by a list of the differences between the section 247 and 257 procedures for stopping up highways.

I need to fill that gap.

After all, the process for stopping up highways in order to enable development to be carried out is a vital corner of our planning system that is particularly dysfunctional and lacking in logic. Perhaps because the process largely comes after the decision as to whether the development itself is to be approved, there is too little focus on whether it is working effectively. The last material change to the procedure was the limited, but welcome, amendment made by way of the Growth and Infrastructure Act 2013, which at least allowed it to commence prior to planning permission being granted.

Section 247 (1) of the Town and Country Planning Act 1990 provides that “the Secretary of State may by order authorise the stopping up or diversion of any highway outside Greater London if he is satisfied that it is necessary to do so in order to enable development to be carried out…in accordance with planning permission...”

The procedure covers all types of highway.

Section 257 (1) of the Town and Country Planning Act 1990 provides that “[s]ubject to section 259, a competent authority may by order authorise the stopping up or diversion of any footpath, bridleway or restricted byway if they are satisfied that it is necessary to do so in order to enable development to be carried out…in accordance with planning permission…”

The procedure just covers footpaths, bridleways and restricted byways.

The substantive test in relation to both processes is whether the stopping up is “necessary” in order to enable the development to proceed and whether stopping up is in the public interest. However, they are administered in very different ways (and the section 247 process is different in London).

(Outside London) a section 247 application is made by the developer to the Secretary of State for Transport, and is administered by the Department for Transport’s National Transport Casework Team in Newcastle. The casework team’s guidance indicates that the “Department aims to process Orders where there are no objections within 13 weeks from receipt of all necessary information.”

If there are objections following publicity for the application, the Secretary of State considers in his discretion whether an inquiry is to be held. If an inquiry is to be held, there are no procedural rules which govern the process. The inspector is appointed by the DfT and reports to the Secretary of State for Transport, who makes the final decision.

(In London, section 247 order applications are made by the developer to the relevant borough.

If objections are received and cannot be resolved, the application is referred to the Mayor of London, who either decides that under section 252 (5A) that “in the special circumstances of the case” an inquiry is unnecessary, in which case the borough may confirm the order, or that inquiry is necessary, in which case the borough must cause an inquiry to be held.)

A section 257 application is made by the developer to the local planning authority, following the form set out in the Town and Country Planning (Public Path Orders) Regulations 1993. If there are objections following publicity for the application, section 259 and schedule 14 of the Town and Country Planning Act 1990 require that the application must be referred by the local planning authority to the Secretary of State for Environment, Food and Rural Affairs (although in practice by way of reference to the Planning Inspectorate’s rights of way section).

Unlike with opposed section 247 order applications, there are procedural rules that govern the determination of opposed section 257 order applications, namely the Rights of Way (Hearings and Inquiries Procedure) (England) Rules 2007 and there is also procedural guidance published by the Planning Inspectorate.

Unless each objector indicates that he or she doesn’t wish to be heard in front of an inspector, PINS will either arrange a hearing or a public inquiry. There are set timescales for the relevant stages. For a hearing, each party wishing to give evidence must provide a statement of case within 12 weeks of the start date. The hearing should generally take place within 20 weeks of the start date. For an inquiry, the parties must provide their statements of case within 14 weeks of the start date and proofs of evidence must then be provided at least four weeks before the start of the inquiry, which should generally be not later than 26 weeks after the start date.

Not only is it odd that the Planning Inspectorate has no discretion to decide that an opposed application be determined by written representations unless all objectors agree (contrast with section 247 but also with the powerless position of an appellant in relation to a section 78 appeal) but these timescales are way out of kilter with modern, post Rosewell, inquiry timescales, where statements of case are due within five weeks of the start date and the inquiry will generally be within 13 to 16 weeks of the start date.

There is a further sting in the tail: The Planning Inspectorate’s procedural guidance warns:

Having received an order from a local authority, we aim to issue the notice containing the ‘start date’ to all the parties within 10 weeks.”

Ten weeks! That is often by definition ten additional weeks on the post permission, pre construction, timeline for a project.

So a section 257 order is likely to take around 36 weeks to get to inquiry…

The only good news is that (another difference between section 247 and 257 orders), the inspector can make the final decision in relation to section 257, so there is no further delay caused by waiting for the Secretary of State to consider his or her report.

In conclusion, there are unjustified differences between what should be very similar processes:

⁃ No overall statutory procedural framework (no procedural rules in relation to section 247; out of date procedural rules in relation to section 257, in terms of leisurely time limits and limited scope for determining that a written representations procedure is adequate)

⁃ No single decision-maker (two different Secretaries of State – and in London the Mayor’s role in relation to section 247 – and section 257 decisions are taken by the relevant inspector rather than needing to be referred to the Secretary of State).

⁃ No single body administering the process (DfT National Transport Casework Team vs Planning Inspectorate rights of way section).

In relation to both processes I would go further: As long as there are appropriate safeguards for those affected and with suitable requirements as to consultation and publicity, surely a local planning authority, at the same time as determining any planning application for development, should be able to approve any highways closures that are required in order for that development to be carried out? Otherwise, the issues are artificially divided, in a way that is particularly confusing for objectors, between two processes (planning and stopping up) which still have to run largely one after the other?

How do I love thee (sections 247 and 257)? Let me count the ways (not).

Simon Ricketts, 15 February 2020

Personal views, et cetera

Secretary Of State Throws Another Curve Ball

My 15 June 2019 blog post National Lottery: 2 Problematic Recovered Appeal Decisions focused on two appeals dismissed by the Secretary of State against inspectors’ recommendations.

Well, here is another one, in relation to the Chiswick Curve scheme on the Great West Road within the London Borough of Hounslow, the 19 July 2019 decision letter out just before Parliament rises on 25 July (by which date we will have a new prime minister). Another long inquiry (15 days), long delays (the initial application was made over three and a half years ago, the inquiry was a year ago), detailed analysis from an experienced inspector who had heard the evidence and seen the site first hand, ultimately counting for nothing.

The Secretary of State’s decision followed an inquiry held by inspector Paul Griffiths BSc(Hons) BArch IHBC, into appeals by Starbones Limited against the decisions of the London Borough of Hounslow to (i) refuse planning permission for a mixed use building of one part 32 storey and one part 25 storeys comprising up to 327 residential units, office and retail/restaurant uses, basement car and bicycle parking, residential amenities, hard and soft landscaping and advertising consent with all necessary ancillary and enabling works and (ii) refuse to grant advertising consent for 3x digital billboards. The applications were dated 11 December 2015 and amended in October 2016.

The differences of judgment as between the inspector and Secretary of State appeared to boil down to the following:

⁃ The Inspector considered “that the proposal would bring a massive uplift to the area around it” and would be in accordance with various local plan policies. “While the Secretary of State recognises that public realm improvements and the publicly accessible elements of the scheme…do offer some improvement to current conditions, in terms of accessibility and movement, he does not agree that this constitutes the massive uplift as described by the Inspector.

⁃ Both agreed that the harm to designated heritage assets (the Strand on the Green Conservation Area plus its listed buildings; Kew Green Conservation Area plus its listed buildings; Gunnersbury Park Conservation area plus its listed buildings and Registered Park and Garden, and the Royal Botanic Gardens Kew World Heritage Site plus its listed buildings) would be less than substantial but the Secretary of State disagreed with the inspector’s finding that the public benefits of the proposals would be sufficient to outweigh the harm.

⁃ The Secretary of State disagreed with the Inspector that there would be no conflict with a local plan policy concerning the impact of tall buildings proposed in sensitive locations such as conservation areas, listed buildings and their settings, and World Heritage Sites.

⁃ Accordingly the Secretary of State disagreed with the Inspector and found that the proposals did not comply with the development plan when read as a whole.

⁃ The Secretary of State “considers that the site has a strategic location, and he recognises the constraints and challenges associated with it. While he agrees with the Inspector […] that the proposed design seeks to respond to those challenges in a positive way, he does not find the proposal to be of such high quality as to be a brilliant response to its immediate context. He finds the scale and massing of the proposal to be such that the proposal does not relate to its immediate surrounding. While he recognises that attempts to minimise this impact have been taken with regard to glazing and fins, the building would still dominate the surrounding area. He considers the design to be a thoughtful attempt to respond to the challenges and opportunities of the site, but due to its scale, he disagrees with the Inspector […] that it is a significant benefit of the scheme.”

⁃ The Secretary of State considered that the proposals “would not provide the levels of private and communal amenity space that [the relevant local plan policy] requires. While he has found this to be a limited departure from this policy, the Secretary of State also recognises that the on-site provision, supplemented by the relative proximity of Gunnersbury Park does reduce the weight to be attached to this conflict.”

⁃ Given his finding that the proposals would not be in accordance with the development plan he went on to consider whether whether there were any material considerations to indicate that the proposals should be determined other than in accordance with the development plan. After a detailed analysis in paragraphs 34 to 38 of the decision letter, he concludes:

Overall, the Secretary of State disagrees with the Inspector […], and finds that the moderate weight to be attached to the benefits of the appeal scheme in terms of housing provision, workspace provision and economic benefits, are not collectively sufficient to outweigh the great weight attached to the identified ‘less than substantial’ harm to the significance of the above heritage assets. He considers that the balancing exercise under paragraph 196 of the Framework is therefore not favourable to the proposal.

Local MPs Ruth Cadbury (Labour) and Zac Goldsmith (Conservative) were recorded as having objected to the proposal. The objectors appearing at the inquiry included Historic England, the Royal Botanic Gardens Kew and the Kew Society (the first two instructing Richard Harwood QC and James Maurici QC respectively). Russell Harris QC and Richard Ground QC appeared for the appellant and for the London Borough of Hounslow respectively.

I note that on 19 July 2019, the Secretary of State also refused, against his inspector’s recommendation, Veolia’s called in application for planning permission for an energy recovery facility in Ratty’s Lane, Hoddesdon, Hertfordshire.

The Secretary of State accepted that there is an “urgent and pressing need” for the facility, that there is “no obvious alternative site”. “Given the urgent and pressing need, the Secretary of State considers that the provision of an ERF with sufficient capacity to accommodate the waste demands of the county carries substantial weight in favour of the proposal, and the climate change benefits of the proposal also carry substantial weight”. However, he considered that in view of the fact that the proposal was contrary to the development plan and there were unresolved concerns over highways matters, together with “significant adverse landscape and visual impacts”, the application should be refused. I thought that “need” means “need” but there we go.

Not much getting past this Secretary of State is there? An inference of his recent letter to the Planning Inspectorate (see my 13 July 2019 blog post Less Than Best Laid Plans: Political Pragmatism) might be that he considers that inspectors may on occasion be too robust in their examination of local plans and yet an inference of his approach on recovered appeals and call-ins might be that he considers that on occasion inspectors are not robust enough in assessing development proposals that are before them at inquiry. For my part, neither inference would be justified.

Simon Ricketts, 20 July 2019

Personal views, et cetera

Less Than Best Laid Plans: Political Pragmatism

The Secretary of State sent a curious letter to the Planning Inspectorate on 18 June 2019, which was only placed on the Government’s website on 28 June 2019. (The delay may have been to allow PINS to update its procedure guide for local plan examinations).

It is in two parts:

Sharing information with MHCLG

The Secretary of State reminds inspectors and local authorities that Parliament has given him “a number of powers that, where justified, allow [him] to become involved in plan making. This includes powers to notify or direct the Inspectorate to take certain steps in relation to the examination of the plan or to intervene to direct modification of the plan or that it is submitted to [him] for approval”. He states that he is “frequently asked by those affected by the plan making process to consider use of these powers and must look at each of these requests on a case by case basis. This includes requests from Members of Parliament, who have a legitimate interest in the progress of local plans in their areas and are accountable to their electorates. I am pleased that the Planning Inspectorate’s published Procedural Practice encourages MPs to participate in the examination hearing sessions even if they did not make a representation and I would encourage their involvement in this way”.

He considers that more can be done by way of sharing of factual information so that his officials can advise him as to whether use of his powers would be appropriate.

He sets out two changes to the arrangements for sharing of information between MHCLG and PINS with immediate effect:

1. On a quarterly basis the Planning Inspectorate will publish a report that sets out the plans that are expected to be submitted for examination in the following 6-month period. I ask that this report be published on the Planning Inspectorate website. Clearly this can only be as good as the information received from local authorities, and I am arranging for this to be drawn to the attention of local authorities to remind them of the importance of giving clear timetables;

2. The Planning Inspectorate will share all post-hearing advice letters, letters containing interim findings, and any other letters which raise soundness or significant legal compliance issues, as well as fact check reports, with my department on a for information basis, at least 48 hours in advance of them being sent to the Local Planning Authority

In relation to the second change, can I ask that we have on one website each of these documents as soon as they can be made public. There is a fundamental lack of transparency in the ad hoc way that this information is currently made available only on the relevant examination page of the particular local authority’s website, meaning that ensuring consistencies of approach, reviewing trends and learning from similar circumstances is currently very difficult indeed.

And what local plans have escaped to adoption before the relevant MP could ask the Secretary of State to apply the knife? Local Plan Intervention: a question of MP influence published by the House of Commons Library in July 2017 summarises the four times since the 2012 NPPF (to July 2017) when the Secretary of State had used his powers of intervention: Bradford, Birmingham, Maldon and North Somerset. In all but Maldon the intervention was at the request of an MP. I note that the MPs’ interventions only achieved delay to eventual adoption of the plan, whereas the call in of the Maldon plan was in circumstances where an inspector had found that the whole plan was unsound, due to its policies on traveller provision, the council’s chief executive successfully sought call in of the plan and the plan was eventually adopted.

Aside from the Secretary of State’s sabre rattling in relation to authorities that have not made sufficient progress with their plans, which I will come to in a moment, what interventions have there been since July 2017? Do we discern a continuing trend? Wouldn’t it be nice to have the information in one place so that potentially straight-forward questions such as that could be resolved. Is MPs’ interest more often in the “progress of local plans in their areas” or is it in being seen to be pressing in relation to those issues of most concern to their electorate eg retention of green belt and/or opposition to housing?

In fact, as I was typing this, in pinged a Planning magazine online update High Court allows legal challenge to Guildford local plan to proceed to full hearing (12 July 2019, behind paywall):

In May, Sir Paul Beresford, the Conservative MP for Mole Valley, wrote to several Guildford councillors expressing outrage at the “astonishing way” the plan had been adopted in the purdah period before local elections.”

Another Conservative MP on the “anti-housing in the Green Belt” campaign trail. Was this local plan perhaps “the one that got away” as far as MHCLG is concerned?

So how has the more general sabre rattling, in relation to delays in plan preparation, been going? My 18 November 2017 blog post Local Plan Interventions referred to the 31 January 2018 deadline given to 15 local authorities to set out any exceptional circumstances as to why they had failed to produce a local plan, to justify the Secretary of State not intervening in their local plan processes.

On 23 March 2018 the Secretary of State made a statement to the House of Commons, indicating that his attention had narrowed to three authorities: Castle Point, Thanet and Wirral:

In three areas, Castle Point, Thanet and Wirral, I am now particularly concerned at the consistent failure and lack of progress to get a plan in place and have not been persuaded by the exceptional circumstances set out by the council or the proposals they have put forward to get a plan in place. We will therefore step up the intervention process in these three areas. I will be sending a team of planning experts, led by the Government’s Chief Planner, into these three areas to advise me on the next steps in my intervention.

I have a number of intervention options available to me which I will now actively examine. As it may prove necessary to take over plan production, subject to decisions taken after the expert advice I have commissioned, my Department has started the procurement process to secure planning consultants and specialists to undertake that work so it can commence as quickly as possible. My Department will also be speaking to the county councils and combined authority with a view to inviting those bodies to prepare the local plan in these three areas as well as exploring the possibility with neighbouring authorities of directing the preparation of joint plans

Tough talk but it then took another ten months before intervention letters were finally sent to Wirral and Thanet on 28 January 2019.

The position in Castle Point is a mystery to me. Councillors voted down a proposed draft of the plan in December 2018. The council’s website simply says this:

A Special Council Meeting was held in November 2018, whereby the Council resolved to not proceed with the Pre-Publication Local Plan. As a result of this meeting the Council are in discussions with the Minstry of Housing, Communities and Local Government in regards to the next steps. “

But no intervention letter yet.

Sadly, if I worked for an authority I would presently be more concerned about the risk of the Secretary of State intervening in relation to a plan that has passed its examination and is about to be adopted than the risk of his intervening due to the lack of a plan in the first place or due to the authority’s withdrawal of a draft plan. We are seeing various authorities taking decisions to withdraw their submitted plans (for example East Cambridgeshire and Amber Valley) because they find the inspector’s findings, usually seeking further development allocations or additional housing numbers, unpalatable and there is still such slow progress on the part of many authorities. Surely this is the scourge – not plans which are within a process that has been refined by independent examination, the outcome of which happens to contradict the views of an MP, now encouraged to participate in hearing sessions “even if they did not make a representation”? In any world other than one in which backbench MPs have to be pacified, isn’t this madness?

The importance of being pragmatic

On the subject of pragmatism…

The second part of the Secretary of State’s 18 July letter comprises this final paragraph which I have already seen trotted out at an examination by one authority seeking to paper over the cracks:

Finally, on the substance of plan examinations, I wanted to stress to inspectors – who are doing a challenging job – the importance of being pragmatic in getting plans in place that, in line with paragraph 35 of the NPPF, represent a sound plan for the authority and consistent in how they deal with different authorities. We support and expect Inspectors to work with LPAs to achieve a sound plan, including by recommending constructive main modifications in line with national policy. In this regard, I would reiterate the views set out by the Rt Hon Greg Clark MP in his 2015 letter which I attach, on the need to work pragmatically with councils towards achieving a sound plan.”

I have since been trying to find an example of a local plan inspector in the last few years who has not been pragmatic in seeking to rescue a plan by way of main modifications rather than recommending withdrawal – and indeed the 2013/2014 spate of plans that failed examination were down to hard-edged legal failings in relation to the duty to cooperate.

Inspectors routinely allow pretty significant changes by way of main modifications, and general evidential backfilling, rather than recommend withdrawal. They routinely accept unenforceable assurances from the authority that the authority will carry out an early review – but at best “early” never means early and, at worst, as last week with the Reigate and Banstead plan, the authority’s (judge in its own cause) “review” determines that changes to the plan are not after all necessary!

So what is this paragraph getting at? If the Secretary of State were to be saying that inspectors should not be checking that legal requirements (eg the duty to cooperate and the need for adequate sustainability and habitats appraisals) have been met or that the plan meets the soundness test in NPPF, that would surely be wholly inappropriate. And shouldn’t we be protecting the independence of the Planning Inspectorate? Formal guidance is one thing, but “go easy” warning letters such as this surely just make an inspector’s task even more challenging.

Imagine equivalent guidance being given to appeal inspectors! Oh yes, bend over backwards to give the appellant time to amend elements of his scheme, overlook policy inconsistencies, fudge the approach to later phases of the development because the appellant has agreed, outside any enforceable timescale, to carry out an “early review” of those aspects. Doesn’t ring true, does it?

Simon Ricketts, 13 July 2019

Personal views, et cetera

Pace Making: Progress At PINS

The Planning Inspectorate has certainly been moving at pace to improve its inquiry appeal processes following Bridget Rosewell’s independent review of planning appeal inquiries, which I covered in detail in my 15 March 2019 blog post Accelerated Planning.

The move to a system of imposing inquiry dates has predictably created the greatest fuss, although is possibly the change that will have the most positive effect in terms of cutting out hiatuses caused by the inevitable sparring between parties as to counsel, team and venue availability. The Planning Inspectorate’s latest 3 May 2019 update addresses that issue head-on:

The Planning Inspectorate is continuing to make good progress with taking forward the recommendations in the Independent Review of Planning Appeal Inquiriesand have now begun increasing the number of inquiry appeals being placed into this new way of working. There are clear benefits in progressing with implementing some of the recommendations and we thought it would be helpful to all concerned to explain our reasons.

To begin with, there can be little doubt that the principal thrust of the Review – to significantly shorten the time between receipt of an inquiry appeal and its final decision – is a significant improvement. To this end, we have been able to appoint more Inspector resource to inquiry appeals, than was envisaged in March when we announced the “pilot”, which has enabled us to bring most of these appeals into the process.

Some parties to the appeals have questioned why we have imposed inquiry dates when informing them of the ‘Start’ of the appeal and the name of the appointed Inspector. These letters are sent to the appeal parties as soon as possible after receipt of an inquiry appeal and have generally set the inquiry date to be between 13-16 weeks of the ‘Start’ date. This has been a significant innovation of the new process and provides the parties with clarity as to timescales from the outset.

To implement the recommendations of the Rosewell Review we must move away from our “bespoke” arrangements which gave specific provision for the parties to agree an inquiry date after an appeal had been submitted. Instead, now we are taking the lead in setting an inquiry date at the earliest opportunity, and this has led some parties to ask if there could be a degree of flexibility after the date had been fixed, or whether they could be given time to negotiate a new date.

We appreciate that this new procedure, for affected appeals, is very different to the way inquiry appeals were managed previously, and that some of the recommendations may be challenging, for everyone involved in the appeal. But it would be difficult to deny the significant advantages that an early inquiry date – and thus an early decision date – will bring to all concerned with the process. We will of course consider whether wholly exceptional circumstances are demonstrated by the parties to explain the unreasonableness of the inquiry date that has been set, but at the same time momentum must be maintained if the Review is to pay the dividends it promises.

The inquiry dates that are now being set give confidence to expect that those appeals will be decided in accordance with the timescales set out in Recommendation 21 of the Rosewell Report.

Recommendation 21 was as follows:

“21.The Planning Inspectorate should adopt the following targets for the effective management of inquiry appeals from receipt to decision

(a) Inquiry appeals decided by the inspector
Receipt to decision – within 24 weeks – 90% of cases Receipt to decision – within 26 weeks – remaining 10% of cases

(b) Inquiry appeals decided by the Secretary of State
Receipt to submission of inspector’s report – within 30 weeks – 100% of cases”

If we can move to a situation where these targets are met, I will have a lot of happy clients. In recent years, the unpredictability has been difficult to explain.

In the current pilot cases, PINS is seeking for inquiries to commence within a 13 to 16 week window of the start date.

And what if your advocate or a particular witness is not available? First, we are going to need to factor that into our pre-inquiry preparations: Who is the sub? Has someone else, a good junior, been shadowing everything such that they can step in or assist with the briefing of someone else? Secondly, surely we need to move away from the cult of personality. I suspect the fact that the system is so unfathomable for many clients increases their sense that as long as they hang onto X, Y or Z QC and A, B or C expert witness they will get through it. All credit to X, Y and Z, and A, B and C, but there are plenty of good barristers and advocates, and of course expert witnesses, at all levels. I suspect there may be a problem with your case if only one advocate (and only one “independent” expert witness) is capable of winning it. Additional costs in double-handling or re-briefing should still be outweighed by the overall cost and time savings if we all get this right.

Of course, speedier inquiry dates represent only one aspect of the changes. The Planning Inspectorate’s Independent Review of Planning Appeal Inquiries – Action Plan (April 2019 update), a document which will be regularly updated, sets out comprehensively the other changes being introduced, many of them with immediate effect.

The biggest ones for people to be aware of at the moment include:

⁃ the firm advice that appellants need to be notifying the relevant local planning authority, copying in PINS, at least ten days before submitting an appeal where they consider that the appeal should be dealt with by way of inquiry. This is important because PINS then requests a view from the authority on whether an inquiry is appropriate, within one day of receiving the appeal (in the current interim stage of bringing in the reforms this is within three days). In turn PINS can then issue the start date for the appeal, from which procedural deadlines flow, within five working days of receipt of the appeal rather than the average of seven weeks taken in 2017/2018! After six months of monitoring whether appellants are routinely giving ten days’ advance notice, the Government may take steps to introduce legislation to make it mandatory, so I think we should all play nicely?

⁃ early case management engagement from the inspector, within seven weeks of the start date, which will increasingly be by way of a conference call between the inspector and the parties (informed by a pre-conference note and agenda), followed by the inspector issuing “clear directions to the parties about the final stages of preparation and how evidence will be examined” no later than eight weeks after the start date.

⁃ the inspector’s directions to include identifying the “key matters in contention, where cross-examination of witnesses is required“, and decisions as to whether a topic by topic approach to the calling of evidence is required. We can expect a range of issues to be dealt with by way of roundtable sessions, without cross-examination.

⁃ encouragement for potential rule 6 parties to be identified at an earlier stage.

⁃ consultation is taking place so as to achieve improved and timely statements of common ground so that they can properly inform preparation of proofs of evidence.

⁃ greater focus on deadlines and indeed “MHCLG will look at the policy for the award of costs to see whether it can be extended to include a fine type of award, such as when evidence is not submitted on time“.

Christopher Young QC wrote an interesting post on LinkedIn this week, setting out his, favourable, experiences of and reactions to what he believes to have been the first Rosewell pilot case, an appeal by Bloor Homes in Penkridge, South Staffordshire. There is nothing unusual about the 3 May 2019 decision letter but the inspector had provided a pre-inquiry note indicating that issues relating to landscape impact and loss of agricultural land should be dealt with by roundtable session, and indicating that she would “prepare an agenda for those sessions based on the submitted proofs of evidence, focusing on the areas where there is disagreement“.

I’m not sure whether this was a formal PINS Rosewell pilot, as the pre-inquiry note predated the publication of the final report and the PINS announcement as to its pilot, but clearly this is a sign of things to come. As Chris notes, roundtable sessions will inevitably become more common. Chris’ inquiry was programmed for four days but only took two and a half days (with the final half day being taken up by closing submissions) – an indication perhaps of how a more directed approach by an inspector can cut timescales and therefore cost.

Incidentally, this is not meant as any reflection on Chris, who is one of the absolute best at nailing points comprehensively whilst quickly, but…

Do advocates’ closing submissions need to be quite so long? If the inspector were to impose a sensible word limit, would that not serve to reduce the current arms race? I was at an inquiry a few years ago when our counsel prepared 70 pages of closing submissions, which he then read out, in full. Very different from my memories of the late Roy Vandermeer QC, who famously regularly made his closing submissions without notes (after a long housing inquiry, as a pupil barrister I once had the impossible task of constructing a note of his submissions to provide them afterwards to the inspector. I looked at my scribble and despaired). I know it is the opportunity to encapsulate the party’s final position on all of the relevant issues and to make sure the inspector has one final chance to indicate if anything is not clear, but surely a little nudge from the inspector sometimes would not go amiss? The closing submissions process also places an enormous burden on the advocate, usually entailing lengthy overnight work which is not usually even separately charged!

For a broader summary of the current appeals system, I also recommend the 22 March 2019 House of Commons briefing paper Planning appeals in England.

There is also now a PINS video explaining how to take part in a planning inquiry (23 May 2019).

And that is this week’s news. Oh and our Prime Minister, for whom the housing crisis was apparently the “number one domestic priority” resigned.

Simon Ricketts, 25 May 2019

Personal views, et cetera

Accelerated Planning

James Brokenshire’s 13 March 2019 written statement, made alongside the Chancellor’s Spring Statement, includes some important, if sometimes vague, pointers as to how the Government intends to speed up development management processes and housing delivery, although already we have a good sense of what lies ahead in relation to planning appeals that proceed by way of inquiry.

Delivery

My 3 November 2018 blog post covered Sir Oliver Letwin’s recommendations to Government following his review into the “build out of planning permissions into homes“.

The Secretary of State has now confirmed that the Government will “shortly publish additional planning guidance on housing diversification – to further encourage large sites to support a diverse range of housing needs, and help them to build out more quickly“.

He agrees “with the principle that the costs of increased housing diversification should be funded through reductions in residual land values. The Government is committed to improving the effectiveness of the existing mechanisms of land value capture, making them more certain and transparent for all developments. My focus is on evolving the existing system of developer contributions to make them more transparent, efficient and accountable and my department is gathering evidence to explore the case for further reform.”

I will keep the need for further interventions to support housing diversification and faster build out, including amendments to primary legislation, under review. My department will also work closely with Homes England to identify suitable sites and will look for opportunities to support local authorities to further diversify their large sites.”

Development management

My priority now is to ensure faster decision-making within the planning system. My department will publish an Accelerated Planning Green Paper later this year that will discuss how greater capacity and capability, performance management and procedural improvements can accelerate the end-to-end planning process. This Paper will also draw on the Rosewell Review, which made recommendations to reduce the time taken to conclude planning appeal inquiries, whilst maintaining the quality of decisions. I will also consider the case for further reforms to the compulsory purchase regime, in line with our manifesto commitment.”

We wait to see what detailed proposals the green paper will include for the planning application stage and indeed for appeals that proceed by way of written representations or hearings.

Bridget Rosewell’s independent review of planning appeal inquiries was published on 12 February 2019. The executive summary sets out the current statistics as follows:

8. “On average, about 315 planning appeals each year are the subject of an inquiry (inquiry appeals), comprising 2% of the total number of planning appeal decisions. Around 81% of inquiry appeals are decided by planning inspectors on behalf of the Secretary State. The remaining 19% of cases (recovered appeals and called-in applications) are decided directly by the Secretary of State, having regard to an inspector’s report.

9. Although relatively small in number the scale of development, particularly housing development, that is determined through inquiry appeals is significant. In 2017/18 over 42,000 residential units were included in inquiry appeal schemes, of which just over 18,600 units were allowed/approved. This represents 5.4% of the 347,000 total approved residential units in the year 2017-18.

10. In 2017/18, it took an average of 47 weeks for inspector-decided cases from receipt of the appeal to a decision letter being issued. On average, it took 60 weeks from the point of validation of an appeal to the submission on an inspector’s report to the Secretary of State for recovered appeals and 50 weeks (from validation to submission of the inspector’s report) for called-in applications. It then took, on average, a further 17 weeks after the inspector’s report had been submitted for the Secretary of State to issue a decision for recovered appeals and a further 26 weeks for called-in applications. In 2017/18, 111 inquiry appeals were withdrawn before a decision was made.”

MHCLG updated its website page Appeals: how long they take on 14 March 2019. That 47 weeks average referred to in paragraph 10 has now slipped to 50 weeks (if that 50 weeks figure excludes recovered appeals and call-ins).

Bridget Rosewell had 22 recommendations as to how the planning appeal inquiry process can be improved and decisions made quickly:

1.The Planning Inspectorate should ensure the introduction of a new online portal for the submission of inquiry appeals by December 2019, with pilot testing to start in May 2019.

2.The Planning Inspectorate should work with representatives of the key sectors involved in drafting statements of case to devise new pro formas for these statements which can then be added to the new portal and include, where appropriate, the introduction of mandatory information fields and word limits.

3.The process of confirming the procedure to be used should be streamlined. Where an inquiry is requested, appellants should notify the local planning authority of their intention to appeal a minimum of 10 working days before the appeal is submitted to the Planning Inspectorate. This notification should be copied to the Inspectorate.

4.The Planning Inspectorate should ensure that only complete appeals can be submitted and ensure that a start letter is issued within 5 working days of the receipt of each inquiry appeal. The start letter should include the name of the inspector who will conduct the appeal.

5.The practice of the Planning Inspectorate leading on the identification of the date for the inquiry should be restored, with all inquiries commencing within 13 to 16 weeks of the start letter.

6.The Ministry of Housing, Communities and Local Government (MHCLG) should consult on the merits of appellants contributing towards the accommodation costs of the inquiry.

7.MHCLG and the Planning Inspectorate should substantially overhaul the approach to the preparation of statements of common ground.

8.a) In every inquiry appeal case, there should be case management engagement between the inspector, the main parties, Rule 6 parties and any other parties invited by the inspector, not later than 7 weeks after the start letter.
(b) Following the case management engagement, the inspector should issue clear directions to the parties about the final stages of preparation and how evidence will be examined, no later than 8 weeks after the start letter.

9.The inspector should decide, at the pre-inquiry stage, how best to examine the evidence at the inquiry and should notify the parties of the mechanism by which each topic or area of evidence will be examined, whether by topic organisation, oral evidence and cross-examination, round-table discussions or written statements.

10.The Planning Inspectorate should ensure all documents for an inquiry appeal are published on the new portal, in a single location, at the earliest opportunity following their submission.

11.The Planning Inspectorate should ensure the timely submission of documents. It should also initiate an award of costs where a party has acted unreasonably and caused another party to incur unnecessary or wasted expense.

12.The Planning Inspectorate should amend guidance and the model letter provided for local planning authorities to notify parties of an appeal, to make it clear that those interested parties who want Rule 6 status, should contact the Inspectorate immediately.

13.The Planning Inspectorate should consult with key stakeholder groups, to update its procedural guidance to set out clear expectations on the conduct of inquiries, based on a consistent adoption of current best practice and technology. Updated guidance should encourage and support inspectors in taking a more proactive and directional approach.

14.The Planning Inspectorate should ensure that its programme for improving operational delivery through greater use of technology fully exploits the opportunities available to enhance the efficiency and transparency of the inquiry event, such as the use of transcription technology for inspectors and publishing webcasts of proceedings.

15.Alongside other recommendations that will improve the transparency and clarity of the process (Recommendations 10, 12, 13 and 14), the Planning Inspectorate should develop a more effective and accessible guide to the inquiry process for interested parties, including members of the public.

16.Programming of inspector workloads should ensure there is enough time to write up the case immediately after the close of the inquiry.

17.a) To minimise the number of cases that need to be decided by the Secretary of State, MHCLG should keep their approach to the recovery of appeals and called- in applications under review. b)The Planning Inspectorate should work with MHCLG to identify ways that technology can be used to speed up the process of preparing the inspector’s report to the Secretary of State.

18.The Planning Inspectorate should submit an action plan to the Secretary of State by April 2019. The action plan should set out how it will ensure that the necessary organisational measures are put in place to deliver the proposed timescale targets and wider improvements by no later than June 2020. This should include the mechanisms by which sufficient inspectors can be made available. The action plan should also set out challenging, but realistic, intermediate milestones to be achieved by September 2019.

19.The Planning Inspectorate should review the issue of withdrawn appeals and consider how this impact on its work can be minimised. To deliver this the Inspectorate should:

(a)  always collect information from appellants about why an appeal is withdrawn

(b)  initiate an award of costs where there is evidence of unreasonable behaviour by a party in connection with a withdrawn appeal

(c)  with the benefit of more detailed information, review whether further steps can be taken to reduce the impact of withdrawals on its resources and other parties.

20.The Planning Inspectorate and MHCLG should regularly discuss the practical impact of new policy and guidance on the consideration of evidence at inquiries, with those parties who are frequently involved in the planning appeal inquiry process.

21.The Planning Inspectorate should adopt the following targets for the effective management of inquiry appeals from receipt to decision

(a) Inquiry appeals decided by the inspector
Receipt to decision – within 24 weeks – 90% of cases Receipt to decision – within 26 weeks – remaining 10% of cases

(b) Inquiry appeals decided by the Secretary of State
Receipt to submission of inspector’s report – within 30 weeks – 100% of cases

22.The Inspectorate should regularly report on its performance in meeting these timescales and what steps it is taking to expedite any cases that take longer.

(a)  The Planning Inspectorate should use its Transformation Programme to ensure there is robust and comprehensive management and business information, which is regularly collected and reported, on all aspects of their operation.

(b)  In developing an improved suite of information the Inspectorate should also:

ensure their digital case management record system records information on key variables in a consistent way

agree with MHCLG a new set of key performance indicators to effectively monitor the inquiry appeal process from end to end, including the availability of senior inspectors. “

These tables give a sense of what we might expect:

The Planning Inspectorate announced on 13 March 2019 that it is carrying out a trial of accelerating a small number of inquiry appeals as part of a pilot of holding inquiries much earlier than at present. For these appeals it will move away from its “bespoke” process whereby PINS invites the parties to agree a programme, including an inquiry date.

Before long we will all have to adapt our approaches to individual appeals in the interests of a more generally speedy process. It will be increasingly difficult to seek to negotiate a later date than PINS proposes (even when the main parties have no objections) in order to accommodate particular team members’ availability.

For the Inspectorate, it’s certainly going to be a period of change. It was announced today, 15 March 2019, that Graham Stallwood, currently chief planning officer at the Royal Borough of Kensington and Chelsea and chairman of the board of trustees of the RTPI, has accepted a position as PINS’ Director of Operations, commencing in May. Graham – you will be excellent!

For those of us who lodge and coordinate appeals for developer clients, well we are going to need to get to grips with a new IT interface for the submission of appeals and new case management processes but above all find the strength to tell our clients the news that, having been at the heart of strategic thinking in relation to a decision to invest in an appeal and having shaped the statement of case, their favourite QC may not in fact be available for that crucial inquiry…

Simon Ricketts, 15 March 2019

Personal views, et cetera

Speedy Delivery, Richland, Washington, MA

Maximus: Dove J Ruling On PINS Validation Approach

My 14 April 2018 blog post Telephone Kiosks v Homes commented on the rash of prior approval applications for “telephone kiosks” under Part 16 Class A of Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015. I queried in passing as to whether some of these applications met the test in the General Permitted Development Order that the development should be for the purpose of the electronic communications code operator’s electronic communications network. I didn’t know at the time that a more basic (and surely from the operator’s perspective entirely avoidable) dispute was under way between one operator and the Planning Inspectorate.

The background to Maximus Networks Limited v Secretary of State (Dove J, 25 July 2018) was that Maximus had lodged around 390 appeals in situations where either the relevant local planning authority had not determined a prior approval application within the statutory period or had decided not treat the application as valid. The London Borough of Hammersmith and Fulham had declined to validate the applications on the basis that Maximus had, in submitting their applications, not met the statutory requirement to provide evidence that notice had been served on the relevant land owner (which in every case was either the London Borough of Hammersmith and Fulham or Transport for London). Maximus “contended that since the land the subject of the application was in the ownership of the highway authority who were also the local planning authority there was no need for compliance with this condition.” The Planning Inspectorate refused to validate the appeals.

Maximus took the position that whilst it is unlawful for a local planning authority to accept an application which does not meet the statutory validation requirements (section 327A of the Town and Country Planning Act 1990) the position is different on appeal, in that the Secretary of State is not constrained by section 327A and, pursuant to section 79 of the 1990 Act, “may deal with the application as if it had been made to him in the first instance” and therefore has a discretion to waive any procedural irregularity. By the time of the court hearing before Dove J, issues had been resolved in all save 53 appeals.

Maximus relied on three grounds of challenge:

1. PINS had wrongly approached the appeals on the basis that they did not have a discretion to treat them as validly made.

2. “even if PINS did, in reality, recognise that there was a discretion which had to be exercised as a consequence of the legislative framework and authorities which are set out below, the discretion was in fact exercised irrationally.”

3. In the event that the court were to find that the appeals were not validly made, Maximus was entitled to refund of the application fees that it had paid to the local planning authorities.

Dove J accepted that PINs did have a discretion to treat the appeals as valid:

“...section 79 of the 1990 Act provides the defendant with a discretion to exercise as to whether or not to accept an appeal even if it is found to be wanting in relation to any procedural aspect. This discretion arises both under section 79(1) which contains a wide discretion for the Secretary of State to allow or dismiss an appeal, reverse or vary the local planning authority’s decision or any part of it, and deal with the application as if made to the defendant in the first instance. A discretion also arises under section 79(6) which provides that the defendant has a discretion to decline to determine an appeal or proceed with its determination if it emerges during the course of the appeal’s determination that the local planning authority could not have granted planning permission…

However, he considered that PINS had indeed exercised its discretion:

“It needs to be borne in mind that this was an administrative decision and thus an overly forensic scrutiny of its terms would be inappropriate. It is particularly pertinent in my judgment that, without being a detailed legal treatise, the decision sets out the nature of the statutory discretion set out in section 79 and summarises the decision of the Court of Appeal in Bath v North East Somerset. I am unable to accept that what follows in terms of PINS’ decision involves a complete negation of the exercise of discretion under section 79. The decision goes on to note the view that had been formed that there had been a failure to comply with the formal requirements in relation to notice under part 16 of schedule 2 of the GPDO and in my judgment that is not evidence of PINS assuming that they only have power to conclude that there was no jurisdiction to entertain appeals, but rather explaining their justification for concluding in applying section 79 of the 1990 Act that the applications have not been valid and therefore the appeals should not be entertained.

In my judgment a fair reading of the decision leads to the conclusion that it is a concise analysis of the basis upon which PINS were declining to accept jurisdiction in respect of the appeals, rather than an assertion that PINS had no power at all to do anything other than refuse to accept the appeals. ”

Dove J accepted that PINS had exercised its discretion rationally in determining that a local authority could be prejudiced in circumstances where it was not served with notice of the making of an application in its capacity as landowning highways authority:

A local authority as a land owner may have very different interests and concerns to take account of in exercising its powers to own and control land. It cannot be assumed that when an application of this kind is made to a local planning authority that the element of the local authority exercising its planning functions will automatically or of necessity consult that part of the council concerned with protecting its interests as a land owner or automatically be aware of all matters which the department responsible for safeguarding the council’s interests as land owner would wish to draw to their attention. Certainly that assumption is not contained within the statutory framework which, uncontroversially, by implication provides for the separate notification of the land owner when it is a local authority as part and parcel of the formalities for the application itself. […] It is a wholly unproved hypothesis that simply because the local planning authority is part of the same organisation as the affected landowner no prejudice from failing to notify the land owner could conceivably arise. It may be that the local authority as land owner would have different concerns and observations to draw to the attention of the local planning authority exercising its development control functions. I am unable to accept therefore that this observation in the pre-action protocol letter betrays circular reasoning or an irrational approach. ”

So, PINS was perfectly entitled to turn the appeals away. However, there was a sting in the tale for the authorities; Dove J accepted that the application fees paid were as a result refundable:

In my view where, as here, the defendant concludes that an appeal is to be rejected on the basis that application is invalid (and he declines to exercise his discretion under section 79 to nonetheless continue to consider the appeal) then that is in effect a conclusion that the application was and should have been rejected as invalid and therefore falls within the scope of regulation 14(3) of the 2012 Regulations. It follows the claimant’s case in relation to Ground 3 should succeed, leading to a declaration that in respect of those applications made to the first interested party they are entitled to have their fees refunded.”

As mentioned, an avoidable dispute, but an interesting reminder of the slightly different approach to validation requirements that applies on appeal. And something other to write about than the NPPF.

Simon Ricketts, 29 July 2018

Personal views, et cetera