Plan-it Law

March's Conundrum - Is the permission implemented or not?

Each month in our publication 'Future Perfect?' we set out an interesting conundrum and invite readers' comments on it. This month's, written by David and Jennifer, reads as follows.....

Is the permission implemented or not?

Once upon a time we knew if a planning permission had been implemented because we checked to see if there was a trench for the foundations, or a road laid out. Then we got the Whitley case which said that the operations in breach of condition could not implement the permission. That has caused a lot of problems and much law has been made since then in finding exceptions (or more properly clarifying the law), most recently in Prokopp and Hart Aggregates.

What happens if the unlawful operations which purported to implement the consent are now immune (and therefore lawful) because they are over four years old and if the landowner and planning authority have entered into a section 106 agreement for a new permission in which it is stated that the old permission has been implemented and no objection will be made to its revocation (as a new similar permission is being granted)? Those were the facts in the recent case of Rastrum. The court held (following Prokopp) that the operations in breach of condition, because they had become immune and therefore now lawful, had implemented the permission. The court also, though with some caution and emphasising that this is a rare result, held that it was possible that the statements in the section 106 agreement had created a legitimate expectation that the planning authority would not refuse an application for a certificate of lawfulness of proposed use or development for the remaining development under the permission.

So what do we do?

1. If you are the planning authority:
a) do you enforce against every operation which breaches a condition and which purports to implement the development? And if that's your policy, how do you police developments adequately; and
b) do you make statements in section 106 agreements reciting whether a permission has been implemented?

2. Whitley is a Court of Appeal decision, and none of the cases which follow it are higher than the Court of Appeal. Should we take a suitable case to the House of Lords at the earliest opportunity and invite their Lordships to overrule Whitley?

Mode of appeal criteria

this  is the link to the criteria published by PINS to be used, from 6 April, by Sec of State in determining mode of appeal. i naively thought there would be some consultation on these....

 

 

End to Twin Tracking

Please note that from 6 April 2009 LPAs will have power to refuse to determine duplicate applications. There is more on this in our March Future Perfect?

Planning Act 2008 commencement

Please note the first set of commencements (bar the order making powers already in) takes effect 6 April 2009. There is a summary of these in our March Future Perfect?. One of the items is SS duty to determine mode of appeal. The Act requires the SS to publish criteria to be used in making these determinations. i have contacted PINS to enquire whether there existing "indicative criteria" (intended as a guide for appellants/LPAs) will carry forward or be replaced.

Government Response to the Killian Pretty Review

The government has now published its response to the Killian Pretty Review - see here.

The aim of the review was to investigate the opportunities for improving the planning application process. It sets out 17 recommendations to government regarding ways to make the planning application system faster and more responsive.

To take the recommendations forward, the government will consult on the main proposals in the review this summer. In the autumn it will consult on improvements to the use of planning conditions.

Time limits on outline PPs

As it seems to be the trend now, given market conditions, to seek more than 3 years for RM applications do bear in mind the effect of section 92 TCPA 1990.  It is open to the LPA to allow more time, but this can only be by substituting a longer period for the 3 years in the statutory form of condition. Care must be taken to avoid the inadvertant imposition of the statutory 3 year period by trying to be too creative with the future timing of RM applications. This  is particularly risky where there may be a desire to allow flexibility in the future say beyond phase 1.

Also be aware that some LPAs (e.g. Peterborough City Council) seem to be still using the old style of condition purporting to allow implementation either within 5 years or, if later, within 2 years of final RM approval. This conflicts with the statutory condition which allows 2 years from final RMs so the statutory condition would be imposed and take precedence. This may mean that a client seeking early appoval of RMs, may believe there is longer to implement than in fact exists.

Shared ownership housing

I am hearing that demand for SO housing from RSLs is low - so when negotiating 106s for developers, it would be prudent to explore the possibility of widening this to intermediate housing to allow intermediate rented accommodation as an alternative.

Back to the future?

An interesting point was made last week at our seminar  that we may well return to "planning by appeal" if housing delivery continues to slip. I expect that in some cases this could even give a basis for a special circumstances case in the green belt.