Plan-it Law

Judicial review - the effect of Uniplex

There is much current discussion in planning circles about the case of Uniplex v NHS Business Services Authority a case from the European Court of Justice reported in January 2010. Although the case, challenging an NHS procurement decision, was brought under the Public Contracts Regulations 2006, the requirement for an action to be brought "promptly and in any event within three months" applied.

The case found that the requirement for such actions to be brought "promptly" did not ensure that the relevant Directive had been properly  transposed into UK law. This was because the "promptly" requirement made the period, in which a challenge should be brought, uncertain. A claimant should be given the full 3 months.

This clearly has implications for cases of JR challenges to grants of planning permission. Although there is no "6 week rule" as such, advisers have tended to advise that actions brought after 6 weeks have gone by from the relevant decision (but still within 3 months) are at real risk of failing on promptness and the Courts have often sought to set the bar at a high level in planning cases because of the impact of a challenge on the rights of those with the benefit of the relevant planning permission.

However, note also the more recent case of R (on the application of Pampisford Estate Farms Ltd) v SSCLG. Here, the Court considered Uniplex and observed that it was not a case where the lack of promptness could have a significant adverse effect on other parties. In Pampisford, the Court came to the view that Uniplex "cannot as a matter of EC law overturn on its own the statutory basis of CPR 54.5" and found that the action, brought within 3 months, had not under the circumstances of that case, been brought promptly.

There is a further point of note in Uniplex which relates to the time when the 3 month period begins to run. In Uniplex the Court favoured the time when the claimant knew or ought to have known about the decision rather than the actual decision. This is at odds with the current position (which following the clarification in Burkett is that it is the actual grant of permission which sets the clock ticking) and, if it were to be seen as relevant in planning decisions, the point could have serious consequences.

Changes from 6 April 2010

Not only will 6 April see the coming into effect of the CIL Regulations, but the same date is shaping up to be quite significant across the board in planning. There are a number of changes including extended permitted development rights, changes to appeal submission deadlines and the streamlining of applications by removing the need for Design and Access Statements in a number of cases and by the injection of a dose of "proportionality" into the validation process.

I have found these documents useful in identifying what changes are coming our way;

 the guidance on information requirements and validation, and Steve Quartermain's letter of 16 March pointing to the other changes

CIL - urgent action on s.106 agreements under negotiation

The CIL regulations are now out and will come into force on 6th April. CIL will take some months to implement of course as there is quite a lengthy process before a charging schedule can be adopted. However the main provisions on the scope of s.106 come into force on 6th April. 

These state that a planning obligation under s.106 cannot constitute a reason to grant permission if it is not necessary to make the development acceptable in planning terms, directly related to it and fairly and reasonably related in scale and kind.

I have always said that this regulation hands a major weapon to objectors.  This is a relatively simple way to challenge new permissions. A permission with a s.106 which strays beyond the policy tests will have been granted on an unlawful and therefore irrelevant consideration.  Judicial review beckons.

The added problem with the new regulation is that it catches permissions granted on or after 6th April even where the resolution is before 6th April.  These may not have considered closely whether the s.106 meets the policy tests.  As the effect of breach is to make the planning permission highly vulnerable to judicial review it would be good to complete any outstanding s.106 agreements on or before 5th April.  As that's Easter Monday, perhaps we could aim for completions on or before Thursday 1st April.

Of course, if you want to defeat someone else's planning permission issued after 5th April, it would be worth having a good look at the s.106.

Select Committee rejects NPS for Ports

In this morning's press release which I have just seen the Transport Select Committee says that the Ports NPS is not fit for purpose.  It should be co-ordinated with policies for road and rail networks.  They also criticise the Government for not allowing the Marine Management Organisation - the body which comes into existence in April with marine planning powers - to comment.  With no imminent proposals for new ports, the committee questions the haste.  It is also unhappy about the evidence base - not enough they say, and no account taken of the recession.  They call for a Commons debate on the NPS, which means the Government must hold one.

This is hardly a good start to the new infrastructure planning system.  Whilst some opposition can be expected, the Government must have hoped that its first statement would get through the system.  What will be the effect on the energy NPSs?  In particular, what about the failure there to consult neighbouring authorities (see my earlier post Nuclear NPS - is there a problem).

In the interests of completeness here is a link to the Select Committee's 266 page report.  

New fees regulations now in force

Just a pointer that the new fees regulations relating to extensions of time and non-material amendments are now in force (as of 26 February). The regulations amend the 1989 fees regulations and provide for the following fees:

* Non-material changes to planning permission — householder application, £25; and in any other case, £170.

* Extension of time -  householder application, £50; application for major development, £500; and in any other case, £170.

I know a lot of people have been keeping an eye out waiting for these regulations to come into force so I expect a raft of extension applications will be submitted very shortly. Note that the non-material changes fees are new, rather than reduced fees - they're not quite such good news!