Plan-it Law

July's Conundrum - the viability of developers

This month's conundrum in our e-bulletin, Future Perfect?, reads as follows...let us have your thoughts.

Whether or not, or to what extent, the financial standing of a developer can be taken into account by a LPA as a "material planning consideration" has been the subject of some debate in the past. Lord Scarman accepted in Great Portland Estate plc v Westminster City Council (1985) that it would be "inhuman pedantry" to ignore human factors such as the impecuniosity of a developer in the administration of planning control. However, he stated such consideration should be limited to "special circumstances" where the LPA could provide proper justification for making this a material consideration. There seems to be no further judicial guidance or otherwise on this issue.

It is unlikely that either the EIR or FOIA would provide any assistance for third parties in accessing such information, if it was even held by the LPA, given that it is likely to be commercially sensitive information and protected by confidentiality requirements - but there are of course other searches that can be done against registered companies.

Do readers, whether from a planning authority or otherwise, have experience of a developer's financial standing being used (successfully or otherwise) as a material consideration when determining planning applications?

And the beginning of the Major Infrastructure Planning Unit

As expected, the Government has confirmed its intention to scrap the IPC and transfer its functions to the Planning Inspectorate, with applications being considered by a 'Major Infrastructure Planning Unit'.

The regime is intended to remain much as it is now, but with decisions being taken by ministers in an attempt to give more democratic accountability to the system.

National Policy Statements will be subject to ratification by Parliament.

Not a good day to be a quango - the National Planning And Housing Advice Unit (NPHAU) and the Commission for Rural Communities are to be axed too.

Green belt 2 : development 1 - secretary of state planning decisions

We now have the benefit of 3 planning decisions from the new Secretary of State. Click here for the link to all 3.

All 3 appeals involved sites in the green belt. 1 appeal, a housing development, was allowed and the other 2 (a wind farm and a residential development) were rejected. In all 3 cases, the Secretary of State had to deal with the fact of his own letter of 27 May 2010 declaring his intention to revoke RS. Although many of us have been wrestling with the in's and out's of all the questions this raises, the Secretary of State has dealt with the issue with efficient and succinct aplomb. He makes clear he gives RS less weight that would have been the case before the letter (acknowledging RS to still be part of the development plan) but says he did not consult the parties on the issue because his decision would have been the same either way. Job done.

Interestingly, he also gave no weight to some provisions in section 106's offered on the grounds that they did not pass the new statutory tests imposed by the CIL regulations.

June's Conundrum - Pickles, Localism, the Green Belt and Sustainability

This month's conundrum, from our e-bulletin, Future Perfect?, reads as follows....

On 27 May Eric Pickles wrote to all local authorities confirming the new Government's intention to abolish RSSs, and advising that, with immediate effect, this was to be considered as a material consideration for planning applications. He suggested that regional figures for housing supply were now irrelevant and that local authorities were free to set local targets.

Our conundrum was going to be "what on earth does that mean for core strategies that are being consulted or examined on now?" However, we now have the benefit of the guidance to inspectors, which sets out what they should do depending on what stage of the examination process they have reached and have also been told that a full announcement will be made on 22 June. We look forward to hearing in more detail quite how the government will action their intentions.

In the meantime, perhaps the real conundrum is that even if there are no RSS targets, there is every chance that the planning authority will agree that some new housing is needed, but with an eye on the importance of "localism", where are these new homes to go? Local authorities will be reluctant to give up their green belts and that does not sit happily with the fact that most sustainable sites are on the edges of towns and cities ... ie, in the green belt. Is there a real conflict between localism, housing needs, climate change and sustainability?

Environmental Information Regulations (EIR) and viability reports

Readers of this blog may have seen my post on 15 April flagging up the point that all information supplied to a local planning authority may well be disclosable under the EIR. Generally applicants for planning permission will appreciate this and there will be no issue about the public having access to any information supplied to the planning officer. However, when viability reports are provided, these can contain very sensitive commercial information which the applicant may not want to see disclosed. Local planning authorities are alive to the issues and will, as a rule, respect confidentiality of this kind of information.

However, it should not be assumed that even where the information is clearly intended to be treated in confidence, and has commercial sensitivity, that the decision on the public interest test ( is the public interest in witholding the information sufficient to outweigh the public interest in disclosure ) will be to refuse disclosure.

Unlike FOIA requests for information, all the exceptions to disclosure under EIR are subject to the public interest test. In the recent case of Bristol City Council v Information Commissioner and anr (May 2010) the First Tier Tribunal (hearing an appeal against the decision of the Information Commissioner) found that although a viability report submitted to justify demolition of a listed building did fall within the exception for confidential information, the public interest in disclosure was greater than in upholding the exception - so the information had to be disclosed.

May's conundrum - s106, material considerations and CIL

May's conundrum, from our e-bulletin Future Perfect?, as written by David Brock reads as follows,..

The CIL regulations codify some of the policy tests for s.106 agreements and say that a non-compliant s.106 cannot be a reason for granting permission. But planning applications must be considered having regard to material considerations and the development plan - s.70 Town and Country Planning Act 1990. Most planning agreements will be material considerations.

So is the effect that:

a) The CIL regs contradict s.70?

b) Planning authorities must take into account even a non-compliant s.106 which is a material consideration, and have regard to it, but cannot grant because of it?

c) Planning authorities must take into account even a non-compliant s.106 which is a material consideration, but in specifying reasons for grant under Article 22 of the General Development Procedure Order 1995 must not refer to the s.106?

Let us have your comment...the first three correct answers will receive a five per cent discount on their next bill for planning law advice.

Freedom of Information/Environmental Information Regulations

I have noticed increased prominence being given to the EIR when local authorities receive requests, stated to be made under FOIA, for information on planning applications. Although the 2 regimes are often put together, they do operate separately because if the request falls under EIR (even if an EIR exemption applies to it) then FOIA does not apply. As a  general rule it seems to me safest to assume that a request for information in relation to a planning application is actually one made under EIR rather than FOIA however it is expressed.

There are some key differences in the way these 2 pieces of legislation operate - notably in relation to the exemptions which apply. For example, none of the exemptions under EIR are "absolute" - all are subject to the public interest test.

As well as FOIA/EIR, applicants for planning permission need to bear in mind the obligations, under the Local Government Act 1972, on local authorities to make available for inspection "background papers" which have been used to prepare an officer's report to committee. This is yet a third regime which gives observers the right to access important information and which again has significant differences when compared with FOIA and EIR. For instance, under the LGA, the concept of "confidential information" is quite different and has a very limited meaning.

Applicants for planning permission who are considering supplying information, in support of their application, but which for good commercial reasons they wish to ensure remains confidential, should deal with this issue at the outset and before the information is supplied to the local authority so that there is agreement on the terms of its supply and an understanding as to how requests under FOIA/EIR will be dealt with and how the material will be treated for background papers purposes. An agreement in writing with the authority would be the best course - although even that could not rule out a finding for disclosure by the Information Commissioner in any given case.

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

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!

Planning conditions - test of precision

I have come across a number of cases recently where the planning authority has imposed a condition on a planning permission requiring "the carrying out of all the mitigation measures contained in the [    ]" The mitigation measures might be in the environmental statement or transport assessment or wherever. I always have a problem with those conditions - because can they really be said to be precise? It may be that the mitigation measures are clearly stated (in which case, can they not be lifted into conditions in any event) but in an ES, there could be many mitigations proposed - or raised but discounted. Can it be right that a third party must root around in the planning application to work out what the developer must do to comply? I'd be very interested in readers' thoughts on this.