Plan-it Law

February's Conundrum - how flexible is 'flexible'?

This month's conundrum from our e-bulletin Future Perfect? deals with the possibility of extending planning permisisons and reads as follows...

The provisions introducted in October 2009 providing a simplified procedure for applying to extend the time period for implementing a planning permission also allows you to extend the time period for submitting reserved matters. What though if you have been able to split an outline consent into clear phases, each with its own reserved matters? It looks as though submitting reserved matters for just one of those phases means you will have tied yourself to the given time constraints and cannot extend in relation to the remaining phases. Have readers found a way to deal with this?

Appeal procedure

In this month's PINS newsletter, available on PINS website (click  here to go to the article) there is a useful overview of how the Inspectorate has found the first few months of their new power to determine method of appeal. The article supports the view we have taken that there will often be issues which need to be carefully examined but which may not necessarily be apparent from the material before PINS when the decision on method of appeal is made. There also seems to be a move against written representations appeals when the decision to refuse was taken against officer recommendation.

January's Conundrum - planning and IPPC

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

A recent case (Ian Frank Harrison v (1) SS Communities and Local Government (2) Cheshire West and Chester Council (2009)) has added further fuel to the debate about the relationship between the planning system and the integrated pollution prevention and control regime. The case emphasises that the regimes are distinct and serve different purposes. The fact that an environmental permit has been granted does not prevent a planning decision maker from concluding that a development will have an unacceptable impact on local amenity. This is a salutary tale for developers. PPS23 advises that both regimes should complement each other and that developers should give consideration to twin tracking applications. Do you think the current division of responsibilities makes for effective decision making?

Model Planning Conditions

Just before Christmas, Beverley posted about the Communities' consultation paper relating to planning conditions.

The Planning Inspectorate is also consulting on proposed model conditions. See here for the proposals. There is still nothing relating to the possibility to sign up to a s106 agreement in a previously agreed form and I echo Beverley's comments that such conditions can be very useful - and acceptable.

Does anyone have any other views about these proposed conditions? Have any opportunities been missed?

The deadline to get any responses to PINS is 12 March.

Appeal - hearings

I am just going through the experience of an appeal by way of hearing on the amended rules. Since April 2009, parties have 1 shot at their pre hearing statements and no longer have a 9 week opportunity to comment on statements from the other side and third parties. Whereas this clearly will cut down on paperwork, and of course the Inspector can allow comments at the hearing, there must be a risk that debate at the hearing will be more protracted and even that there may need to be an adjournment if a point is raised by way of comment, which the other parties need time to consider. This may be more of a risk with issues raised by third parties because, in theory, there should be no surprises as between the main parties. I'd be interested in any recent experience readers have had on the operation of the amended rules.

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?

Cambridge Biomedical Campus

We were delighted to reach completion last week on the s 106 agreement for the Cambridge Biomedical Campus - which allowed Cambridge City Council to grant planning permission for a substantial biomedical development including an expansion of Addenbrooke's hospital and the relocation of Papworth hospital. These form part of the planned southern expansion of Cambridge into the recently reviewed Cambridge Green Belt. We were acting for Addenbrooke's.

The campus will be one of the largest and most internationally competitive concentrations of health-related talent and enterprise in Europe. It is good to see forward planning reaching milestones like this.

Officers' scope to draft planning conditions

I have just come across a situation which has highlighted a bit of an anomaly to me - where a case officer recommended an application for refusal but the committee voted against her recommendation and decided to grant. The scope of the committee resolution did not spell out any conditions which it considered necessary, but there were clear issues with the proposed development which it would be logical to deal with by way of cconditions.

How far do officers' drafting powers go, in relation to these conditions? Presumably not too far, or they could effectively negate (or at least seriously water down) the committee's decision, but as their professional view was that the development was not acceptable, they may well be minded to condition a grant quite heavily.

Is the answer that the officer is restricted to conditioning only those matters discussed by members before voting, even if their resolution doesn't refer to the issues? There are of course circular requirements that the conditions must be reasonable etc, but that doesn't seem to deal with the relationship between officer and member. How is this dealt with in practice?

Streamlining et al (!)- is it just me?

Every announcement from DCLG regarding planning that we read at the moment is pushing the "we must streamline the system/make it more transparent" button. Sounds good to me - but is this what is happening with the commencement, on 1 October 2009, of the first part of the "package of measures" we were told to expect? I don't know about you, but I think things are becoming more rather than less complicated, largely because of mixed messages and "overlapping" consultations.

By way of amendments to the GDPO, the main streamlining effect of this first set of changes appears to be twofold;

1 to introduce a new application form and procedure for s 96A applications (non material amendments - introduced by the Planning Act 2008). These, if granted, would result in the previous permission being amended - no new permission would result.

2 to make it easier to apply to "extend" the time on existing planning permissions. This is where things get complicated. Although the new prescribed form refers to an approval here as "replacing" the original permission, in fact what would happen would be that a second permission would be granted - but with a fresh time period running from its grant. The consultation paper recognised this fact, but both the form and the explanatory note with the statutory instrument (amending GDPO) speaks of "replacement".

Although we have read that this ability to extend only applied to permissions granted on or before 1 October 2009, it is legally possible to make the same application even though the permission is granted later. All we have in the amendment is a simplified procedure (reduced paperwork and no D&A) where the original permission was granted on or before that date (and is extant and not implemented). Otherwise - make an application in the usual way.

The proposed amendment to the GDPO to remove the need to submit a D&A with s.73 applications is part of the current consultation -  "streamlining ..planning applications".

Validity of officers' decisions

Leeds City Council has got itself into serious difficulties by not being able to trace any lawful authority for the delegation of thousands of planning decisions to case officers. I wonder if this has worried any other local authorities or whether others are confident that they have got their documentation in order.

An objector has challenged one grant of permission in the High Court and the legal costs alone are said to amount to a six figure number. More worryingly, if the Council loses, all affected decisions will be invalid - and no doubt that will cause an administrative nightmare.

Whilst I am not aware that there is any indication that the challenge raises questions of deliberate foul play, it does highlight the need to ensure that all internal authorisation procedures are correctly in place.

Interestingly, the High Court has also made a protective costs order for this challenge, indicating a fairly high degree of public interest in dealing with the matter.

The substantive hearing is listed for late October - we'll be keeping an eye out for the judgment...