A blog about planning, planning law and planning policy
Disclaimer The information on this blog is not intended to be advice, legal or otherwise. You should not rely on it and I am sorry but I can't accept liability in connection with it. But if you do have a planning law question on which you would like advice, do get in touch with me at the email below. Specific advice should be sought for specific problems.
Contact address:
david.brock@keystonelaw.co.uk
|
The Commons debate on the NPPF threw up much adverse comment about the Inspectorate, but we lawyers came in for plenty as well.
I particularly liked Greg Clark’s reply when, having opened the debate with a list of congratulations from many former sworn enemies of the NPPF, he was asked by Roberta Blackman-Woods, Labour MP for the Durham City: “Did the Minister receive letters of congratulation from planning lawyers?”
“Not especially,” he replied, “but I hope they will have time on their hands in future to engage in some retraining.”
Towards the end of the debate Jack Dromey, came up with: “I am surprised that among the tributes read out on Tuesday there was not one from planning lawyers, because Ministers are the toast of planning lawyers. They believe that homes will be built as a consequence of the new NPPF, but they will be homes in Marbella—second homes for planning lawyers who make a killing on the back of the confusion and uncertainty that the Government are creating.” (I think Mr Dromey needs to improve the quality of his research – I carried out a quick straw poll and couldn’t find any planning lawyers who wanted to have a house in Marbella.)
There is a strange relationship between Parliamentarians and lawyers. The largest profession in the House of Commons has long been lawyers. It was lawyers who were in the vanguard of the crucial assertion of the right of Parliament to control the Executive in the seventeenth century, when courageous lawyer MPs such as John Hampden made a stand over ship money and other untrammelled powers of the King. But in more recent times, we see apparent jealousy about the role of lawyers. This was particularly so in the previous Government’s reaction to the length of time it took to get a decision over Terminal 5. There were many references to highly paid lawyers with the inference that they make unjustified profit out of the system.
The case on T5 has never really been properly investigated. It is my understanding that the decision making was considerably lengthened by the lack of and changes in Government policy and the changing position of the Highways Agency/Department of Transport. It also took the Government, who called in the application within three weeks of submission, two years to arrange for the inquiry to start.
But we should consider why lawyers are involved in the planning system. Every person wishes to put his or her case in the most persuasive way possible, to win, and there are no prizes for coming second. Those blessed with confidence, gifts of oratory and clear writing will be able to make a good job presenting their own point of view. (We see this daily in Parliament.) But not everyone has those gifts, the directors of project promoters do not need them every day and nor do they know their way around the arguments, policy and law. The same goes for objectors. So it is important that promoters and objectors can call on someone to do that for them. We call these people advocates, and in the main they are lawyers. But we should be quite clear; normally, anyone can have a friend to help them put their case. Even in the Law Courts, a MacKenzie Man can assist. This is an important freedom, the freedom to bring in a helper, the freedom to appoint someone to act on one’s behalf.
I am glad to be on record, on this blog, with my support for the NPPF. The first point in my consultation response was: “I support the concept of a clear concise statement of planning policy. When the Planning Policy Guidance Notes were introduced in 1989 they were short and to the point. Now they are lengthy and repetitious. This makes the planning process expensive and difficult.”
But we should recognise that all change creates uncertainty. And where there is uncertainty there will be disputes. Which have to be settled. So yes, the changes wrought by the NPPF are going to lead to more appeals, in which solicitors, barristers, town planners, planning consultants, surveyors, architects, engineers and many other professions will be involved. But what would we rather have – the thousand pages of repetitious advice, or concise policies we can understand?
So with that in mind, I offer you a round-up of the references to lawyers in the Commons debate on the NPPF:
Roberta Blackman-Woods: A recent survey of town planners revealed that 86% believed the NPPF would lead to more appeals because of the lack of certainty in the planning system and the vagueness of much of its language. No wonder that many are calling it a planning lawyer’s dream.
Clive Betts: What does a “limited degree of conflict” mean? There is an awful lot of room for an awful lot of lawyers to argue about that and make quite a bit of money.
What does “degree of consistency” with the framework mean? Ministers may think they know what it means, but lawyers may have a different view and two lawyers may have two different views, and that can lead to an awful lot of expense, delay and, perhaps, the wrong decisions.
Chris Heaton-Harris: I think the hon. Gentleman will find that two lawyers will have a number of different views.
Tristram Hunt: …the hostility towards proper regulation has turned a planning document into a lawyers’ charter.
Here is a picture of a planning lawyer.
There was a debate in the Commons this week over the NPPF. There were two recurrent themes and one really serious point. The two themes were (i) that planning lawyers will be rejoicing over the NPPF as it is going to lead to a lot more cases and (ii) the role of the Planning Inspectorate. I will post on the lawyers issue next week, but first to the Inspectorate which is more serious.
The comments about the Inspectorate were almost all negative and I think it is worth setting them out.
Chris Heaton-Harris (Daventry) (Con): I am completely with my right hon. Friend on the consistent application of the plans, on the local plans themselves and on local people being involved, but what then of the final piece of the jigsaw, the reform of the Planning Inspectorate, which in many rulings completely contradicts all local input?
Greg Clark: Part of the problem with the Planning Inspectorate…
By putting power into the hands of local people so they see that decisions are going to be taken locally and respected locally, part of the purpose of our reforms is to move away from the situation in which decisions taken locally are overturned by the Planning Inspectorate. I have made that very clear to the inspectorate. I went to speak to the inspectorate the morning after we published the NPPF, and I made it very clear that the framework is a localist document which it is to respect.
Martin Horwood (Cheltenham) (LD): Does [the Minister] accept that there is a slight risk that when local plans come to be examined in public, we will again see the influence of the Planning Inspectorate and elements of the local plans may be overturned? Does he agree that when it comes to local plans, the default answer from the Planning Inspectorate ought to be yes?
Roberta Blackman-Woods(City of Durham) (Lab): …My point is that far from increasing the power of communities, which has been much championed by the Minister, the NPPF could lead to even more decisions being made by the Planning Inspectorate, which is removed from local communities.
Chris Heaton-Harris (Daventry) (Con): …The Minister knows my concerns about the Planning Inspectorate, and I understand that he has written to a constituent of mine, saying that there is a chance of its duties, or the inspectorate itself, being reviewed soon, so I should like to hear something about that.
There is considerable criticism here of the Inspectorate. The flavour is both that they should not overturn a local decision and that there is something wrong about their procedures and function. Christopher Heaton-Harris in particular seems to have it in for the Inspectorate and is evidently campaigning for its reform and a review of its duties. I hope we can see the letters he has written to the Minister.
His comments and those of the other MPs quoted above suggest that any appeal which is allowed is now seen as wrong because it is the reversal of a locally made decision. The flavour is that local decisions are going to be right, whatever they say. So the Inspectorate is going to be in the wrong whenever it allows an appeal.
But a moment’s reflection shows that cannot possibly be the right approach. Firstly, we give a right of appeal against most governmental (including local government) decisions. Examples include benefits, licensing, tax and rent assessment. This has two benefits. The existence of the right of appeal, where the decision maker has to justify their decision encourages greater rigour. And the courts are not burdened with legal challenges. Second, what is to happen where the authority misinterprets its own policy, or makes factual errors, or misunderstands the statistical evidence presented? Our system does of course allow an authority to go against its own policy, but good reasons have to be given. It is not to be done capriciously. The ability to appeal – the Inspectorate in other words – is one of the safeguards of that. And thirdly, how is national policy going to be applied if it is simply what local authorities say it is.
I am reminded of Humpty Dumpty:
“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
We often stop there, but Humpty and Alice’s exchange went on:
“The question is,” said Alice, “whether you can make words mean so many different things.
The question is,” said Humpty Dumpty, “which is to be master that’s all.”
Clive Betts put his finger on it during the debate when he observed, “But, if the sum total of all local decisions to which the Minister has referred does not account for the amount of growth that the Government want to see delivered in the economy as a whole, what will be the Government’s answer to that?”
But, as Lewis Carroll also wrote, “Answer came there none”.
I was struck by a question posted on a planning Q&A site the other day from a parish council seeking help over unpaid money under a s.106 agreement. The problem seems to be that the payment was due at occupation of the first tranche of affordable housing. It has been occupied but the payment not made. The local authority was trying to enforce the debt against the developer, with no success, and was being offered a new s.106 for the payment to be made later.
Probably there is more than meets the eye but the post drew a comment from someone clearly knowledgeable in planning who said that “99% of the [s.106] paperwork I see is fatally flawed and it only takes one word to do so”. Now that is an exaggeration but I too see poorly drafted s.106 agreements. And poor enforcement. In the parish council’s example, I wonder why there was no restriction on occupation until the payment is made. And why is the affordable housing provider not being pursued for the payment? The title must have passed to it if the units are occupied. And in the last analysis the actual affordable housing occupiers are liable as persons deriving title. It might be politically unpleasant to enforce against them, but the remedy is there.
What examples do others have of defects like these?
 So the NPPF was finally issued yesterday. At 59 pages, even the most hardened critic must welcome it. At last we can say goodbye to the pages of repetition of law and policy in the old PPS series. There is a helpful and explicit list of what has been abolished at the end, beginning with PPS1. And of course, the NPPF includes the presumption in favour of sustainable development.
There is a time and a place (not here) for exhaustive commentaries (and a few weeks ago I did get a letter from the Planning Inspectorate asking if I was proposing to do a comparison with the old policies so as to see what had changed, and if so could I help with theirs). This post is going to be about big points only.
First, I am struck by the frequent use of the word “positive” – positive planning, plan positively, positive growth, taking a positive approach to sustainable new development and so on.
Second, we will have to learn when a plan is silent or its policies are out of date because in those cases the presumption allows development to go ahead, unless adverse impacts outweigh benefits or it is contrary to the NPPF
Third, the transitional provisions are very interesting.
Taking these in turn, the emphasis is on positive planning. Greg Clark was engaging about this in the House introducing the NPPF yesterday. He supports growth to give the next generation homes and jobs, and wants to improve our countryside towns and cities. And he is passionate about putting (in his words) “unprecedented power in the hands of communities to shape the places they live” but experience just does not suggest that in practice communities want to implement his aspirations.
When is a plan silent or out of date? A plan which is a day old should not be followed if a new and relevant material consideration comes along. But “out of date” is the wrong test. The oldest of old plans must be followed, unless material considerations indicate otherwise. True, an old plan is likely to have been overtaken by many new material considerations and so be “out of date”. But using the colloquialism in one of the most significant policies on planning ever produced, may cause difficulties. Silent may be difficult to interpret as well – few plans have nothing which can be applied to a development proposal.
Which leads naturally to the transitional provisions. In brief they tell us that the policies apply from the date of publication; that local plan policies should not be considered “out-of-date simply because” they were adopted before the NPPF was published; and that for twelve months from publication, decision makers “may” give weight to policies adopted since 2004 even if there is limited conflict with the NPPF. They tell us that from now, emerging plans can be given weight according to how consistent they are with the NPPF; and after the twelve months, the weight to be given to existing plans is dependent on their consistency with the NPPF.
The words which interest me here are “may” and “simply because”. “May” suggests that decision makers are free to apply NPPF policies if they wish; they’d have to have good reasons. But a plan is not to be considered out of date ”simply because” it was adopted before the NPPF was issued. Does this mean that there might be other reasons why the plan should not be followed? That would be right, other material considerations. What might a good reason and material consideration be? Might the actual policies of the NPPF constitute a good reason? Paragraph 212 of the NPPF (coming between “simply because” and “may”) says that the NPPF policies are material considerations “to be taken into account from the day of its publication”.
This is what is in the chancellor’s speech
“Next week my Right Honourable Friends the Communities Secretary and the Planning Minister will publish the results of our overhaul of planning regulation.
We’re replacing 1,000 pages of guidance with just 50 pages.
We’re introducing a presumption in favour of sustainable development;
While protecting our most precious environments.
The new policy comes into effect when the National Planning Policy Framework is published next Tuesday.”
But this is what is in the Budget Report on the Treasury website (my italics):
“1.234
The Government is reforming the planning system so that it supports growth. The Government will publish the National Planning Policy Framework (NPPF) by the end of March 2012, coming into force for plan-making and decisions from that point onwards, with appropriate implementation arrangements for local authorities with pro-growth policies in local plans. There will be support to help local authorities get plans up to date quickly.”
That sounds like a transitional arrangement to me. Obvious questions are what is a plan with a pro-growth policy and what will the appropriate “implementation” arrangements be?
The Chancellor has just sat down. He was expected to say that the NPPF was being issued this week, or according to some reports, today. Instead he announced it would be issued by DCLG next week and that it would include the presumption in favour of sustainable development. And then he said that the policy changes would come into effect when published. I’m pretty sure he said that but given the head of steam which has built up around transitional provisions for the presumption in favour of sustainable development this is remarkable. There was a lot of debate in Parliament about transitional provisions last year so I am going to want to read the text of the chancellor’s speech and – next week – the actual NPPF to check what is actually happening.
But such an approach would be logical, and it might explain why the NPPF will not be issued today, not this week, as DCLG is sent back to amend the final draft.
Has there been a hitch? The word on the street last week was that the NPPF would be issued on Budget day, Wednesday 21st. There were accompanying suggestions that the final draft was subject to comment from Treasury and BIS who were not happy. So on the Andrew Marr Show yesterday George Osborne announced that it would be out in Budget week.
Leaving on one side the possibility that the Chancellor’s speech can’t be finished in a day, what could this mean? Could it be that some work is going on around the rather difficult idea of transitional provisions? I am looking forward to seeing those provisions as it strikes me as odd to phase in a new policy so as to allow local authorities to update their plans. If the presumption in favour of sustainable development is to overrride non-compliant plans what will happen if at the end of the transitional period the plan has been amended, but is still non-compliant?
 With the headline ” New planning powers continue to be a hit with local communities”, DCLG has announced that Wave 5, a further 108 communities, have joined the 125 front runners using the new neighbourhood planning powers in the Localism Act 2011. This is a link to the map showing where they are. It has to be said that this is quite a wide geographical spread.
I am surprised by the number of takers though I always said that the Government would push this forward as they have invested a lot of political capital in it. I was dubious because there is a need at the end of the process, which itself is not short, for a referendum on the proposals. I have doubted that communities would really get behind development proposals when we have been for so long stuck in the chocolate box approach (read my post on passports and you’ll see what I mean). Perhaps neighbourhood planning will become the place where we rediscover our vision and confidence in a better tomorrow.
I am speaking on Wednesday at the Law Society about the legal aspects of neighbourhood planning. It would be interesting to learn the views of others.
 There is an interesting decision about this reported today. Samuel Smith Old Brewery challenged a decision of the Secretary of State for Energy to give consent for new power lines at Ferrybridge. The procedure for this was under the Electricity Act 1989. If the Secretary of State gives permission for lines under that Act , he can also direct that permission is deemed to be granted under the normal planning regime, but without an application for planning permission. The main question in the case was whether the determination had to be in accordance with the development plan (unless material considerations indicated otherwise). That is s.38(6) of the Planning and Compulsory Purchase Act 2004 which applies to determinations under the planning Acts (as defined).
The Court held that the determination was not under the planning Acts – not really a surprising conclusion – and so the presumption in favour of the plan in s.38(6) did not apply.
Nowadays, the Infrastructure Planning Commission takes decisions on lines above 132 kV, under the Planning Act 2008, which is not, despite its name, a planning Act. It has to decide in accordance with the relevant national policy statement, unless adverse impact outweighs the benefits. So the presumption doesn’t apply there either. Or does it? The IPC must have regard to other matters which it considers are “both important and relevant”. Isn’t the plan and the presumption which would apply if the application were a planning application important and relevant? I dare say the argument will rage. And things will also change when the IPC is abolished in April, with decisions then reverting to the Secretary of State.
Finally, where the line is 20kV or above but below 132 kV the old Electricity Act procedure applies so the Samuel Smith decision will be relevant there.
Where would you expect to see these cottages?
On a chocolate box perhaps, or on the wall in a tea-room? I got my new passport back today. For a number of reasons I have not been looking forward to renewing my passport. The first is that it has an electronic chip with information in it over which I have little control. Happily, the last Government’s proposals to include fingerprints have been abandoned and from what I can glean from the Identity and Passport Service my picture is in there, with measurements of distances between my eyes, nose, ears and mouth (useful when I need new glasses I suppose) and the printed data in the passport.
So having overcome my loathing of giving government and officials easy access to personal information, I was quite pleased to receive my new shiny passport, until I opened it and found the chocolate box cottages on page 1, which is where they are. Never mind I thought, there’s bound to be an image of the 30 St Mary Axe (aka the Gherkin) or Lloyds Building, or 1 London Wall, or Highpoint or something like that. So I turned the pages and this is what I saw:
a weathermap, a reedbed, a geological formation, a coastal cliff, a fishing village, a beach, a canal, a village green, a formal park, woodland, a lake, a river, moorland, and a mountain. Even the village green had a row of thatched cottages.
I think this is rather sad. We project to ourselves and the world an image which does not exist any more, and which never really existed. So it is not surprising that the current campaigns by the National Trust and CPRE catch the public mood. Where will we celebrate current forward thinking new design to meet the needs of today, without prejudicing the ability of future generations to meet their own needs?
|
|
