Plan-it Law

Community Infrastructure Levy - draft regulations and consultation published

I have attached a link here to the consultation which came out today, as predicted in my last post. I'm sure we will all have quite a lot to say about them.  Do send us your comments.

Community Infrastructure Levy consultation - you heard it here first

Be alert.  My guess is that we'll see the consultation on draft CIL regulations in the next two weeks.

Scheme to accredit agents for planning applications

I have just seen this on the Planning Portal blog:

"One of the Killian Pretty projects we are responsible for investigating is Recommendation 13(b) Develop an accredited Agents regime...The simple idea being that having passed a quality test, perhaps over a range or quantity of applications an agent becomes accredited. The accreditation would be a quality mark that might ease passage of that agents subsequent applications through registration and potentially validation. The benefit to the agent being obvious and the lpa gets better quality applications."

That shocked me. Firstly, anyone should be allowed to submit a planning application and have it "entertained" by the LPA without needing an agent. If accreditation is adopted, applications by individuals or non-accredited agents are likely to get second rate service.  We may even get to the position that only accredited agents can submit. (In the law, legal aid work is now confined to accredited firms with a Government contract.)

Secondly, what does it say for the complexities of submitting a planning application these days?  The old simplicity (a form, correctly filled in, a plan with a red line round the site and the application fee) has been replaced with requirements to meet the national validation checklist and the local (discretionary and often confused) checklist. Oh and in addition the requirement for a design and access statement. The legal requirements for that are unnecessarily complex.

If you want to know more or comment go to the Planning Portal blog on this link: Accreditation .  Or you could comment below on Plan-It Law.

July's Conundrum - reasons for grant and summary of policies

Each month in our e-bulletin, Future Perfect?, we pose a conundrum that has struck us an interesting and invite readers to give us their ideas and opinions - or maybe even the answer! This month's reads as follows, let us know what you think....

This month, we've seen a few planning permissions that don't necessarily go as far as they should in providing a summary of reasons for grant, or in explaining the purport of the various policies referred to. Typically, they simply stick to their usual form of referring to the committee report and listing the policies by number. As a developer, you may well want to get your consent as soon as possible, but there are a growing number of cases showing that sufficient reasons must be given on the decision notice. If there are no known strong objectors to your proposals, do you just take the consent as drafted and get on with things, or are developers getting more nervous about the need to ensure that the consent tells readers what it should? And as a local authority, are you seeing any changes to this practice?

Enforceability of planning obligations

An interesting case is reported today - Waltham Forest v. Oakmesh - on enforcing planning obligations. When lawyers say something is interesting you know it means it's a bit unexpected. Oakmesh entered into a s.106 agreement and then sold the land to a housing association - Family.  The s.106 required a bridge to be built, amongst other things. Section 106 specifies a number of formalities for a valid agreement, one of which is that it identifies the land of the person entering into it. The agreement didn't identify the land on which the bridge was to be built, though it did identify other land on which the development was to be carried out. 

Oakmesh went into liquidation after having sold to Family who, when enforced against, took a number of steps.  First and very sensibly they tried to vary the s.106 agreement under s.106A.  That (and an appeal under s.106B) failed. So when the planning authority sought an injunction to enforce they argued that s.106's formalities hadn't been complied and that the obligation was therefore unenforceable. Unfortunately they had not taken this point in the s.106A/106B process nor in any of the discussions around enforcement.

The judge decided this prevented them taking the point in the injunction proceedings. First, it would be an abuse of process to raise it in the injunction proceedings when it hadn't been raised earlier. Second, Family was estopped by its representations and conduct to the detriment of the planning authority from amending its pleadings to raise the point.

The abuse of process point doesn't seem right to me. Applications and appeals under s.106A/106B are about whether the obligation serves a useful purpose, not whether it's a valid obligation.  The point could not have been raised there and even if ithad it wouldn't have made any difference to the appeal.

The second point looks a bit odd as well. If Family sold the site to a third party, they would not have made the representations. Would they be estopped?

Anyway, I think that the moral is, raise all your points at the very beginning. Which probably means coming to a good planning lawyer.

Eco Towns

The wait is over and the Government has just announced the 4 successful locations for what is being termed  the "first wave" of eco towns. The locations are no real surprise (Rackheath, Norwich; North West Bicester; St Austell (China Clay) in Cornwall and Whitehill-Bordon in Hampshire) and all have strong local political support. The hope is that applications can come through the planning process and achieve permissions during 2010. 

The announcement comes alongside the publication (on 16 July 2009) of the supplement to PPS1 which, as well as giving the eco town locations, sets out the challenge in terms of what they must deliver. A £60m infrastructure fund is also being made available and the successful schemes can bid for schemes to support local infrastructure.  

Although I have been critical of the way in which the Government has handled the eco town issue (often causing unnecessary confusion and giving rise to opposition which might have been avoided), I am a fan of the concept and can see that these schemes could be very exciting. So now that the names are in print, lets get behind them!

DPDs - achieving soundness

The Planning Inspectorate has this week published its annual report, and it makes interesting and easy reading. I was struck however by the statistics about how many Core Strategies are being declared sound. In the reporting period, 41 CS's were found to be sound, 8 unsound and a surprising 15 withdrawn or being withdrawn. Although, as the report points out, the number of unsound DPDs is falling, these latest figures suggest there is still some way to go. Given the more focussed emphasis on the key soundness measures ( the most onerous perhaps being the requirement for "robust and credible evidence") I wonder if Local Authorities are in need of more resources to further reduce the risk of wasted time arising from a finding of unsoundness or the need to withdraw. I'd be interested to hear from LPA readers as to how they manage these risks.

Race Relations Act and planning decisions

There has been another case involving a challenge to a planning decision based, in part, on a claim that the Council had failed to observe its duty under the Race Relations Act 1976 s.71 (the duty to have due regard to the need to promote equality of opportunity and good relations between persons of different racial groups). This is the case of R (on the application of Harris) v Haringey LBC (2009). The Council granted planning permission for a refurbishment and extension of a Latin American market. The claimant argued that there had been a failure to consider the impact on the black minority ethnic community.

Even though the Council, in this case, had not called for an equality assessment, nor had it referred in terms to the duty in its determination, the Court found that there was sufficient evidence in the development plan that the duty had been observed. So the claim failed - but the case does show, yet again, that the RRA duty to have due regard is highly relevant in planning decisions and it must be good practice to deal specifically with the issue "up front" in the committee report and to consider whether an equality assessment should be carried out. We expect more of  these claims to be brought - and some will succeed.

Chelsea Barracks - who's right, Rogers or the Prince?

Now the dust has settled a bit on the Chelsea Barracks debate – you’ll remember that Prince Charles is said to have written  to the Qatari owners of the development site to express his concern over Richard Rogers’ design - I’d like to add something.  The result of Prince Charles’s intervention was that the owners withdrew the design before it went to Westminster City Council’s planning committee.

 

I should say that I am a great fan of Rogers’ work, ever since the Pompidou Centre, and no supporter of the Prince’s taste in or views on architecture, ever since the “monstrous carbuncle” speech.

 

The criticism made by Rogers is that the Prince interfered with the democratic process of planning. He suggests that the planning process chooses and moulds the buildings we get.  Whilst it’s true that the process can reject and influence design, it does not choose the buildings. The owner or developer initiates the process and it is their privilege to decide which architect to use and which design to submit.  The planning system is also enjoined (slightly less strongly now than in the late 1980s) to stay out of matters of taste.  It’s a hard dictum, but if your neighbour’s taste doesn’t agree with yours and he paints the brickwork of his London terrace house brick red when you’d prefer the natural colour of the London Stock bricks (cream, fading to grey as it weathers) then unless it’s listed or in a conservation area that’s just tough.  The owner/developer is in the driving seat and at Chelsea Barracks Prince Charles hasn’t interfered with the planning process.  He has simply persuaded the owner to abandon the design.

 

Rogers second point is that the Prince is being “unconstitutional” by what he does.  It is rumoured that

What is Associated Development?

As you are all no doubt aware, there has been consultation recently relating to Nationally Significant Infrastructure Project applications. It is intended that the development consent to be granted by the IPC will be one document to cover (pretty much) all necessary consents and permissions for the Project. It can also cover 'associated development'.

From what I understand, it is for the applicant to decide what 'associated development' he wants to include in his application - typically this will cover such things as access roads. It is then for the IPC to decide what it will accept as 'associated development'. However, I am less clear on how much scope there is for that to be the subject of debate in front of the IPC. If environmental impact assessment etc has to be carried out before it is actually agreed what the scope of the 'associated development' is, is there not significant scope for challenge on the basis that the assessments have not actually assessed the totality of the project that is given consent - or that development has been assessed which is then taken out of the project description? Would it be safer to deal with such development in separate applications?