Plan-it Law

New estate bans cats and dogs to protect birdlife

The Sunday Times of 27th December carried this story that a property developer - Redrow - has banned homeowners from keeping cats or dogs to protect birdlife on nearby heathland.  Breach could lead to eviction. 

The tone of the article portrays Redrow as an unreasonable developer imposing draconian rules on something which is none of its business.  MP and "cat-owner" Anne Widdecombe is quoted saying “The dictatorial nature of this decree is unbelievable. The developer has exceeded its powers by telling people what pets they can and can’t own.”.  That's an interesting reaction because this is of course what Natural England requires as a result of the designation of the Thames Basin Heaths SPA under the Birds Directive to protect the Dartford Warbler, the nightjar and the woodlark, and the operation of the Habitats Directive. The latter is particularly difficult as it dictates the outcome in certain circumstances, rather than the process; the decision maker has no choice.  Complaints about dictatorial behaviour should therefore be addressed to those who passed those two Directives.  It also illustrates how important it is that the UK Government maintains a practically minded watch on the emergence of new law in Brussels.  The Thames Basin Heaths are geographically located just where we have a major housing need.

The seventy or so comments on the article are worth looking at too. They range from agreement with Anne Widdecombe to support on the ground that dogs and cats spread disease.  Only two comments point to the EU Directives.

There is however a nice irony in the article which says that the RSPB thinks the ban is unenforceable.  What will their next action be?

Consultation on planning conditions

One of the recently published pre Christmas DCLG consultations concerns the use and discharge of conditions. Readers may be interested to read the debate, in the consultation paper, as to whether or not the Secretary of State should soften the current policy about the use of Grampian style conditions to secure a planning obligation post grant of permission. DCLG's current position is that these conditions should not be used - but some authorities still seem to use them and many planning lawyers, myself included, regard these conditions as potentially lawful.

The consultation suggests that a way forward may be to allow such conditions - but only in certain well defined circumstances including where at least a set of heads of terms  has been agreed and can be annexed to the decision notice. No doubt we'll be sending in a response to this - I'd be interested in readers comments. Here is the link;

http://www.communities.gov.uk/publications/planningandbuilding/improvingplanningconditions

Planning decisions and Race Relations Act duties

I had another example the other day of a planning "decision" arguably falling foul of the local planning authority's duties under the Race Relations Act. In this recent case, the LPA was seeking to prevent new student accommodation (being constructed for a local university) being used by language students in the summer vacation period. They accepted that there is no policy objection given that the construction is actually for an established university - but took the view that the "spirit" of the policy (which would have precluded planning permission for accommodation for language students) would be offended if language students could occupy in the summer period. This seemed to me to offend the RRA duty - for example, a visiting research student, say from the US,  staying in the accommodation short term whilst undertaking some work at the university would be acceptable - but not a student say from Italy coming to the UK to learn English.

Happily a compromise has been reached - i'd be interested to hear if readers have any experience of similar issues

December's conundrum

The conundrum set out this month in our e-bulletin, Future Perfect?, reads as follows....what do you think?

We have been considering whether works required pursuant to a condition on a planning permission (but not forming part of the application), require a further planning consent to be granted. We have seen a number of cases which suggests that they don't and that the condition is effectively an implied grant of planning consent for those works (see Irlam Brick Co for example). However, there does not seem to be any statutory basis for this stance. Have you ever come across it in practice or been required to obtain a separate consent for such works?

CIL and section 106 agreements - are the messages getting through?

I was at an interesting seminar this morning from the BPF and Planning Inspectorate at which Steve Quartermain, chief planner at DCLG, was speaking on section 106 agreements and CIL.  Interestingly Steve said that they are still intending to introduce CIL on 6th April 2010 and (a) they are still looking at scaling back s.106 (b) CIL is not meant to give two opportunities to take a bite from the cherry and (c) they are still interested in views on making the policy tests in 5/05 into law.

So this was a good chance, with a good audience of leading lawyers and planning consultants, to make again some points I and the Law Society's Planning & Environmental Law Committee have made before:

(a) it's no good just scaling back s.106 - there are plenty of other ways to obtain non-policy compliant advantages - conditions, section 38 and s.278 agreements to name but a few

(b) planning permissions currently in existence can be caught by CIL if authorities bring in their charging schedules before implementation

(c) making the policy tests law will give a major weapon to objectors to challenge the grant of permission.

Steve was frank and open and in response to my points and I am delighted that DCLG are alive to (b) but I was not comforted by the solution apparently being considered.  My answer on (c) is that the Secretary of State should make it clear he will uphold appeals about s.106s which go beyond the policy tests. Steve's reply was that there aren't so many appeals on that issue, but that's the same as with conditions. There will always be cases where the landowner/developer says "Oh hang it, I'll put up with paying a bit more".

No response on my point (a) however. There are a lot of things still to iron out on CIL. and not much time if the regs are coming in on 6th April.

Zero carbon ambition for new non domestic buildings

The Government's aim of ensuring that all new non domestic buildings are zero carbon by 2019 was made clear in the 2008 budget. With about half of the nation's carbon emissions being from buildings, the prize is clearly one worth the effort. DCLG has a current consultation on how this target is to be achieved. No real surprises (the plan is to use a combination of energy efficiency and on and off site renewables) but a couple of points struck me;

1) the Climate Change supplement to PPS 1 will be updated next year with a view to a clearer role for local planning authorities in energy planning and ensuring zero carbon targets are met.

2) the Government is clearly concerned that the property market has not yet responded to the issues through higher premiums for zero/low carbon buildings so we are likely to see some measures designed to manipulate the market in this way