It took His Honour Judge Sycamore just nine paragraphs to find that a clause preventing landowners from applying for parking permits was not within s.106 of the Town and Country Planning Act 1990. And just one further sentence to quash the planning permission to which the s.106 agreement related.
The case is R (oao Khodari) v. The Royal London Borough Council of Kensington and Chelsea, reported at  EWHC 4084. decided on 18th November 2015. It was less than three years earlier that the same point came up, with the same result, in Westminster City Council v. Secretary of State. I posted about it here.
Why does this happen? Well, s.106 says that to be a planning obligation a promise must be within the categories in s.106(1), which are:
(a) restricting the development or use of the land in any specified way;
(b) requiring specified operations or activities to be carried out in, on, under or over the land;
(c) requiring the land to be used in any specified way; or
(d) requiring a sum or sums to be paid to the authority … on a specified date or dates or periodically.
How is a promise not to apply for a car-parking permit within any of those? It isn’t. But s.106 does not need to be this restrictive. Before 1991, it was wider. As I wrote in my post on Westminster: “It is over 10 years since I raised points like these in “Planning obligations, ideas for reform” and the Law Society’s Planning and Environmental Law committee has raised them several times, recently urging the Government to include reform in the latest planning bill. But DCLG and its predecessors resolutely refuse to address the problem. Their current view is that planning authorities and applicants should get proper advice, and if they make mistakes that is their own look-out.” Nothing has changed. Except that it is now 13 years since I wrote that article in the Journal of Planning Law.
The costs claim against Kensington and Chelsea in the latest case was £28,000. And of course the planning permission is also lost. Will DCLG amend s.106 to make the drafting of s.106 agreements less of a hazard?
Writing in The Sunday Times on 10th January, the Prime Minister said “I’ve put the bulldozing of sink estates at the heart of turnaround Britain”. He claimed that housing estates bring together “deep social problems – the blocked opportunity, poor parenting, addiction and mental health problems — that mean so many are unable to fulfil their potential”.
He has post-war estates in his sights, especially brutalist and high-rise architecture, claiming that they are entrenching poverty. And he went on to say that 75% of those convicted in the 2011 riots came from post-war estates.
Now there are certainly some unpleasant places to live and there are schemes to transform estates. Oddly enough, the scheme to transform Woodberry Down includes a number of tower blocks of flats, but which are for private ownership. But there is huge social dislocation in demolishing entire streets or apartment blocks. Communities which have formed are scattered and need to re-establish. The post-war estates were partly to re-house those whose houses had been destroyed during the war, but later, and into the 1970s, there was an entirely well-intentioned policy of clearing housing which was declared “unfit for human habitation” and replacing it with modern homes. Communities were split up and then re-housed in new council housing estates. From 1967 onwards these had to meet Parker-Morris space standards and some built before then were at that standard or above. Le Corbusier, operating in Europe, had considerable influence on building decent sized homes, and spacious local authority homes based on his Modulor were built in this country as early as the 1950s.
In contrast, the homes of today are small and fail by some margin to meet the space standards of post-war housing. The architectural commentator Owen Hatherley, writing in The Guardian two years ago pointed out that “The average family home is now 96.8 sq m rather than 98.8 sq m a decade ago, or 153 sq m in the 1920s”.
Inside a flat at Trellick Tower
But observation suggests that a major factor in the quality of life is people. Trellick Tower, an examplar of Brutalism if ever there was one, designed by Erno Goldfinger, has now become highly desirable for some. It has even been listed at Grade II*. Le Corbusier’s Unité d’Habitation in Marseilles, once a very grubby building (I know, I visited it in the early 1970s) is now popular with young professionals and media-types, and it looks good today. Margaret Thatcher knew about this and one of the drivers for the right to buy was that owners of property tend to look after it better than renters.
In an earlier housing announcement, during the election campaign, the Conservatives pledged to extend the right to
The view over London from Trellick Tower
buy to housing association tenants. But will tenants not think twice when they consider that if things don’t go according to plan and their estate ends up in poor shape, with petty criminals living there, they might be in for the same fate? (Much of our social housing is now in the hands of housing associations, where local authorities were effectively compelled to transfer it by previous governments.) What also of those who have already exercised their right to buy their council house or flat and now find that Mr Cameron has their estate in his sights?
Can we really say that re-housing people will be the answer to blocked opportunity, poor parenting, addiction and mental health problems? We must look after our social housing properly. Repairs and renewals will be needed for the new housing the Prime Minister is proposing.
And where does he imagine the 75% convicted in the 2011 riots are going to live when their “sink estates” are demolished? Why, we shall find them in the new housing of the 21st century.
In a tear-jerker Victorian ballad, the American minstrel Paul Dresser narrated how a soldier-boy was to be shot at dawn for desertion after his dying mother called for him. “When the truth at last was known, his innocence at once was shown; To save from such an unjust fate, A pardon sent, but ‘twas too late!” The awful deed was done and the boy sent “into the arms of his Maker”.
But in the world of environmental assessment it seems that the late arrival of an important document may not always be so fatal.
In R (oao Silke Roskilly) v. Cornwall County Council  EWHC 3711 an application was made for planning permission for some buildings to allow the restart of mineral extraction at Dean Quarry on the Lizard Peninsula. There was no environmental assessment and the Council gave a screening direction that one was not needed. This is not as surprising as it might sound as the conditions on the quarrying permission had been revised under the ROMP procedure in the Environment Act 1995. However, an objector– Silke Roskilly – had, between the council’s screening opinion and the grant of permission, applied to the Secretary of State for his screening opinion. Regulation 4(8) allows any person to seek screening from the Secretary of State.
Cornwall proceeded to grant the permission without waiting for the Secretary of State’s opinion. When it came through, he decided the development did indeed require an environmental statement. As there is a prohibition on granting planning permission for EIA development without taking the “environmental information” into account, the objector challenged the grant of planning permission.
The developer and Council countered that at the time the decision was taken it was lawful – there was a valid screening opinion of the Council that the planning application was not for EIA development. Nonetheless Mr Justice Dove decided that the later issue of the Secretary of State’s screening opinion meant that the permission was invalid and he quashed it. (He also held that it was irrational for Cornwall not to have waited for the Secretary of State’s opinion, and quashed on that ground as well.)
What is this going to mean in practice? Not only is there no limit on who can seek a screening opinion from the Secretary of State, there also seems to be no time limit. So could one be sought right up to the grant of permission? That would effectively allow objectors to delay the decision considerably whilst waiting for the Secretary of State, especially as Mr Justice Dove held that failure to wait for the Secretary of State’s screening opinion was in that case irrational.
Could one be sought after the permission has been granted? In a slightly confused paragraph 40 Mr Justice Dove seems to entertain this even as he dismisses it, saying “Of course, there will come a time after the grant of planning permission when no screening direction has been requested when that consent is immune for Judicial Review as a result of the passage of time and therefore no purpose could be served by seeking a screening direction from the Secretary of State”. But the reasoning there is not so strong. Whilst the six week period for judicial review may pass, that does not make the permission wholly immune from challenge. In the first place, there is a discretion to extend the JR period (which Mr Justice Dove had to exercise himself in that case, and which he has exercised before in Gerber v Wiltshire Council  EWHC 524). Secondly, validity can sometimes be raised in a collateral challenge. So for example, if the applicant sought to make a s.73 application for permission to develop without complying with conditions subject to which a previous permission was granted, the validity of the previous permission might come under scrutiny, and if successful that would remove the basis of the s.73 application.
Which is the “unjust fate” now?
Heathrow third runway
The BBC and The Times are today carrying stories that 10 Downing Street is again postponing a decision on whether to proceed with a new runway at Heathrow. People will remember that early in the Coalition Government Sir Howard Davies was asked to lead The Airports Commission, charged with reporting in the summer of 2015 (after the May 2015 General Election) on where to put a new runway. It duly reported on 1st July, recommending a third runway at Heathrow, but a decision on the matter was immediately postponed by the Prime Minister, David Cameron, albeit with a promise that it would come out before the end of 2015. Now, it is postponed again. It’s difficult to work out the reason, but putting cynicism aside, it may be for more environmental work to be done amid issues on air quality.
Cynics and political opponents say that it has more to do with the Mayoral elections in London where Zac Goldsmith, the Conservative candidate, opposes a third runway at Heathrow; the election is next May. And we should note in passing that Nick Clegg, the erstwhile leader of the Liberal party and former Deputy Prime Minister in the Coalition Government, writing in The Evening Standard last week said that all the logic points to Gatwick.
As time passes, this decision becomes more, not less difficult to take. Why? Because as time moves on, things change. It is not as though Sir Howard Davies and his fellow commissioners ignored environmental issues. Their full terms of reference are too wordy by far to bear repetition here, but they include the following: “The Commission should base the recommendations in its Final Report on a detailed consideration of the case for each of the credible options. This should include the development or examination of detailed business cases and environmental assessments for each option, as well as consideration of their operational, commercial and technical viability”. They were expressly required to carry out environmental assessment. (As if anyone in the United Kingdom would make a recommendation for a new runway without doing that.) The Commission was established ostensibly to look dispassionately and objectively at all the issues, including economics, and come up with a recommendation. It took environmental factors into account. If we now send the issue off to look only at environmental factors (already addressed by the Commission) then we send it off to what Bernard Levin over thirty years ago called “the single issue fanatics”. Surely the point of the Airports Commission was that it was to look at matters in the round, and make a balanced recommendation. (Which is why it is disingenuous of Nick Clegg to claim that the logic all points to Gatwick.)
Or is Number 10 saying that Sir Howard and his fellow commissioners forgot the environmental part of their brief?
Sir Howard Davies
I would be surprised. Their report is 344 pages long and the Environmental Assessment section is over ten per cent of that. Not even a moron in a hurry (to re-use another phrase from the 80s) could forget that. Or is the problem that something else has come up? For example, in October, Clean Air London published the opinion of Robert McCracken QC about the Air Quality Directive. The argument is that since the UK is in admitted breach of the Directive and the Treaty on the Functioning of the EU requires Member States to refrain any measure that would jeopardise the attainment of the Union’s objectives, any planning consent which would worsen the existing position in the locality or cause a new breach should not be issued. If that is an influential factor in Number 10’s approach, then first, Robert Mc Cracken QC and Clean Air London should be very pleased with their reach. But second, we see the results of prevarication.
What is actually happening here? It seems to me that the truth is that politicians are simply unwilling to take the decision. When I was a young assistant solicitor at Herbert Smith, Andrew Congreve, then the head of the property department, reminded us that whilst there is moral good in making a good decision, there is a moral good just in making a decision. Prevarication simply creates problems. Things change. It creates uncertainty. And with uncertainty, other decisions become more difficult. Paradoxically, it is better to take even the wrong decision than not to decide. But it is unlikely that The Airports Commission made the wrong recommendation. Not after expenditure of £20 million or so on their work.
The other paradox is that the Government knows this. Less than three months ago I wrote on this blog about the Treasury publication “Fixing the Foundations” that: ‘“Fixing the Foundations describes [the problem] like this: “Previous studies have found that the country’s planning system –where development proposals require individual planning permission and are subject to detailed and discretionary scrutiny –can create the sort of “slow, expensive and uncertain process” that reduces the appetite to build.” Government is now committed to removing all unnecessary obstacles to the redevelopment of brownfield land, “including these sorts of planning obstacles”’. But it is not committed to doing that when it comes to airports. We should recognise that we are not yet at the planning application stage on the airport capacity issue. The Government is simply struggling even to formulate a policy on where the capacity should be increased. When (if?) the application comes forward it will be exhaustively scrutinised under either the Development Consent Order process of the Planning Act 2008 or a Hybrid Bill, which will of course and quite properly require environmental assessment. Under Labour’s Planning Act 2008 – as amended by the Coalition Government – the final decision lies with the Secretary of State. In the original (Labour Government) form of that Act, once the policy was set, the decision was out of politicians’ hands. Instead, the Infrastructure
Heathrow Terminal 5
Planning Commission had the final say, meaning that the final decision lay with technocrats rather than democrats. That Act was the product of political exasperation with the three and a half year public inquiry into Heathrow’s Terminal Five. But the real reason the T5 inquiry took so long was the absence and then change of Government policy.
It is a rich and sad irony that the Government still cannot make the necessary airports policy. The technocrat approach passed the buck. Responsibility for these most controversial of decisions which impinge on the day to day lives of thousands should lie with politicians, the democratic approach in other words. But that requires politicians willing to take unpopular decisions in what they honestly believe to be the public good. Are the democrats up to the job?
I have been wondering for some time whether there is something other than increasing the supply of planning permissions which is needed to address the housing shortage and affordability. The Government has pledged to construct 1,000,000 houses during the life of this Parliament, by 2020 therefore. They also pledge 200,000 Starter Homes in the same period. That sounds positive, but Governments do not actually build houses any more. That is almost exclusively the function of the private sector.
The Government also points to the rise in numbers of dwellings granted permission last year (242,000 in the year to June 2015) and 170,690 net additional dwellings in 2014-15, a rise of 25% over the previous year. These are significant rises. But there is some way to go to reach the target of 200,000 per annum. In addition, house price inflation is running at 10% p.a. (for the year to October 2015 – see the FT on 5th November quoting the Halifax/Savills survey released on 29th October), and estate agents routinely announce, trumpet even, that there are nine buyers chasing each dwelling for sale in some areas. Housing is becoming less and less affordable. Between the first quarter of 1989 and the third quarter of 2015 first time buyer house prices in the UK as a whole have risen from 3.8 times average wages to 5.1 times. In London they have risen from 5.6 times to 9.6 times (source, Nationwide). The problem even applies to the new Starter Homes initiative. A couple, both on an average salary would struggle to buy one in 90% of all council areas in the South-East according to Savills’ research quoted by Anne Ashworth in The Times yesterday.
What has triggered my thinking is observing the way large housing sites are actually built and sold. Whilst there are sites with permission for sometimes thousands of houses, not all the houses come forward at the same time. Now of course there are practical construction reasons why the developments are phased. One can’t have too many developers at work simultaneously – there would be clashes between machinery, deliveries and construction programmes. In addition, the on-site infrastructure needs to be installed, and to keep up front costs under control that will be phased as well. The BBC Today programme however ran a piece on 3rd November 2015 pointing out that at Ebbsfleet there has been a planning permission for 15,000 dwellings for some years yet since construction began in 2007 only 350 dwellings have been built. (See this link for further details.) Now the banking crisis has of course intervened, but even so this is a remarkably slow rate of delivery, explained by the industry by reference to the cost of site preparation. That is odd, as the site preparation costs would normally have been estimated and allowed for in the original proposal.
Recently, figures about the decline of the small and medium sized house-builder have been getting some publicity. The Lyons Housing Review highlighted that whilst in the 1980s there were 10,000 active SME builders who between the delivered about 57% of housing, in 2013 there were only 2,800, producing 27%. Matthew Parris, writing in The Times on 14th November championed small housebuilders. Having first observed that “We face a crisis on housing. We need a lot more, fast. And something seems to be blocking what you might call the elasticity of the housebuilding industry’s response to a huge and compelling increase in demand. Demand soars, need screams, profit beckons, but supply still creeps. There appears to be a stickiness in the system. The latest figures show housebuilding substantially up. Good. But it needs to soar.” He went on to suggest that the small housebuilders have a role to play in doing smaller developments which, he said, do not attract the volume housebuilders as their business models demand the economies of scale offered by large sites. Parris attributes the decline in SME builders to their credit having dried up and his suggestion is for Government credit guarantees to be offered.
But I wonder if there is another way in which housebuilders, small and large, could help to increase supply, rate of build and affordability, namely by being more numerous. 75% of new housing is delivered by the volume housebuilders. That is between six and ten companies, depending on where you go for your definition. Which is a very small number of players controlling their delivery. The trick in marketing new houses is of course to bring them onto the market at slightly less than the rate of demand. If the rate of delivery exceeds demand, prices will fall. But with only ten major players in the market, there is not so much competition. One way to increase competition would be to split up the current volume housebuilders into smaller entities. If there were more players, there would be more competition, which normally drives down prices in a combination of more supply and more players competing for purchasers.
Whilst the Government is doubtless very reluctant to see house prices drop, the current rate of increase is highly problematic. Furthermore, the increased numbers of houses being permitted does not seem to be addressing the issue. The Office of Fair Trading studied the industry in 2008 (Homebuilding in the UK: A market study, September 2008, Office of Fair Trading) and concluded there was little evidence of competition problems or ability to restrict prices. Whilst I would not argue against granting more permissions, the problem is moving to getting those permissions built out, and it would seem sensible to review the OFT’s 2008 conclusion. A review of the competitiveness of the new housing market by the newly established Competition and Markets Authority would be the first step.
Today’s Times carries an extract form Bill Bryson’s new book “The Road to Little Dribbling; More Notes From a Small Island”. Under the headline “We ought to be appalled to see what is happening to the green belt”, the extract is a paean for the retention of the green belt. But it slips between green belt and green field, almost equating the two and fails to maintain the important distinction. It lists the benefits of the green belt, but fails to note the problems – such as increased journey times, air pollution, and the creation of a belt beyond the belt of highly priced rural properties, in ideal commuting locations.
And Bryson adds to the mythology of the undoubtedly beneficial green belts by claiming, erroneously, that “The notion of green belts was enshrined in the 1947 Town and Country Planning Act”. It was not. The first green belt, around London, was created under the Green Belt (London and Home Counties) Act 1938. Apart from that, the basis for green belts is entirely in policy, which, unlike legislation, can be changed by policy makers. Unlike the laws of the Medes and the Persians, green belts can be repealed, or changed. We don’t have to go back to King Darius and Daniel in the Lion’s Den (read Daniel, Chapter 6 if you want to see the unfortunate consequences) to see how undesirable it is to make things immutable.
The Secretary of State for Business Innovation and Skills, Sajid Javid, launched proposals for productivity on Friday 11th July, in a Command Paper called “Fixing the Foundations”. The parts which got press coverage were the reforms to planning.
In outline, the major changes are to adopt a zoning system for brownfield sites, under which sites on the statutory registers of brownfield land suitable for housing would have an automatic deemed planning permission; and to allow upward extensions in London up to the height of adjoining buildings, where neighbours do not object. This is coupled with allowing housing proposals to use the Nationally Significant Infrastructure Project process in the Planning Act 2008, a fast-track certificate to establish the principle of minor development proposals and a dispute resolution process for s.106 agreements. There will also be a tightening of the planning performance regime. The local plan process and length will be streamlined and the Secretary of State will intervene to write local plans where local planning authorities do not meet a deadline, to be set before the summer recess, for plans to be put in place.
It is interesting that the paper recites the removal of the “top down regional strategies”, putting “local authorities at the forefront of deciding how to meet the need for housing through their local plans”. Yet this manifestation of localism is having to yield to reality, with the Government having to force authorities to get on with the job.
But it is a sad turn of events that leads us to abandon, in the case of brownfield sites, our well developed case by case planning system, in favour of a presumption that they are suitable for housing. The trouble with the well developed system is that for twenty years from 1990 it was not under-pinned by the presumption in favour of development that accompanied the existence of planning controls for the previous eighty years. The legacy of those twenty years, notwithstanding George Osborne’s announcement in the 2011 Budget of a presumption in favour of sustainable development, is a culture of control rather than enablement.
Fixing the Foundations describes it like this: “Previous studies have found that the country’s planning system –where development proposals require individual planning permission and are subject to detailed and discretionary scrutiny –can create the sort of “slow, expensive and uncertain process” that reduces the appetite to build.” Government is now committed to removing all unnecessary obstacles to the redevelopment of brownfield land, “including these sorts of planning obstacles”.
It is obvious that other aspects of the proposals challenge localism to its core. Authorities without local plans will find they are written for them, by the Secretary of State. The NSIP process, where the decision is taken by the Secretary of State, and practically everything is done in writing with minimal opportunities for public hearings, will be available to housing. Will the Conservative party actually stand for this in the long run? Just as George Osborne rediscovered the presumption in favour of development, last in favour during Mrs Thatcher’s Government, and used to great effect by Nicholas Ridley, the then Secretary of State with responsibility for planning, will he also rediscover the Conservative voter’s aversion to being told what to do by central government? The Thatcher/Ridley approach led to a lot of development, sometimes at odds with rather long in the tooth local plans. But it was at Foxley Wood, a proposal for a new town at Bramshill Plantation near Reading that it met its nemesis. Chris Patten, by then Secretary of State in place of Nicholas Ridley, refused permission, finding that he was at odds with the local somewhat Conservative electorate. This led eventually to the s.54A duty to take decisions in accordance with the local plan unless material considerations indicated otherwise.
Will this pattern repeat itself? The reaction to Sir Howard Davies’ Airports Commission report into where to site the next runway in the South East is not encouraging. On the day the report was published – 1st July 2015 – recommending a third runway at Heathrow, the Prime Minister, who some years ago rejected that idea but set up the Commission, announced that a decision would be taken by the end of the year, clearly signalling that the Government is willing to overrule the Commission’s recommendations, which have cost £20 million and taken two and half years’ work. (figures from The Times online, 1st July 2015).
It is probably significant that the lead on planning policy is, under this and the previous government, to be found at the Treasury and BIS. But the question is will the current Secretary of State with responsibility for planning decisions, Greg Clarke, turn out to be a Ridley or a Patten?
Here is a link to Fixing the Foundations.
The fire last week at Clandon Park in Surrey has reduced the house to a shell. It was an imposing 18th Century house, built in the Palladian Style for Thomas Onslow whose great-grandfather. Sir Richard Onslow, an MP in the Long Parliament had acquired the estate about a hundred years earlier. His family have been active in English political life since then but by the 1950s the cost of maintaining Clandon Park had become prohibitive and it was given to the National Trust.
Clandon Park had marble chimney pieces by Rysbrack. It housed the Gubbay collection of furniture and porcelain; Meissen figures; and Mortlake tapestries. It was also the home of the Surrey Infantry Museum.
But now it is no more. Aerial photographs show it to be a shell, open roofless to the sky. Sir Simon Jenkins, the chairman of the National Trust until last year, wrote in yesterday’s Sunday Times urging its reinstatement as a facsimile, as it would have been when first built. “What better task for a new generation of curators and craftsmen? What more intriguing process for visitors to witness?” he writes.
But this is a sad attitude. It suggests that the past was always better than now. It lacks confidence in today. And it ignores what Clandon really was. The house burnt out last week itself replaced an Elizabethan building. Its interiors were altered later in the 18th century. And as Jenkins himself writes, “Its porch was Victorian”. Whilst the house, designed by the Italian architect Giacomo Leoni who helped bring Palladianism to England, is reckoned to be his masterpiece, the truth is that it is no more. The building’s contents had been assembled by the National Trust since the 1950s. In reality it was a museum, and Jenkins’ proposal is to refurnish it commenting that “The world has 18th century furniture and artworks aplenty”. Would that really be so special? To bring some of the world’s abundant 18th century artefacts to a house rebuilt to pretend to be the original. But that would not recreate the original, because the original was a home, and the rebuild would be a museum. A facsimile will not be truthful. Rather it will promote a rose-tinted view of the past. We forget when we look at these places that life expectancy in the 18th century was short, infant mortality high, hygeine poor, pollution abundant, travel and leisure the preserve of the rich. We forget also that the architects of the past used the best of the technology of their day. We forget that Georgian windows owe their beautiful proportions to the technology of that day – the panes were the largest that could be produced using the most advanced techniques.
Why not instead accept that a catastrophe has occurred a Clandon? The house of yesterday has been lost. It may be that there is a desire still to admire the beautiful Palladian architecture (though, as with 18th century furniture the world is not short of glorious Palladian architecture either, e.g the Queen’s House at Greenwich and the White House in Washington, not to mention many of Palladio’s own masterpieces around Vicenza) in which case Clandon could be retained as a ruin. But surely we should ask rather what is actually needed at Clandon Park in the first quarter of the 21st century. Is the need actually for a museum? What are the choices? Might someone want an isolated new house in the countryside?
If there is some need, then let us build something which has the confidence to anounce that it is a 21st century creation, something in today’s style, designed by one of today’s great architects, someone with the confidence to change what we see, to leave a visible mark, to do better? Let us use the technology of today to produce a building of significance, perhaps better than the Clandon Park of yesterday. Or will we just produce a replica, something which pretends to be that which it is not, which deludes its visitors and the uninformed, a monument to backward looking thinking?
The procedure for deemed discharge of conditions came into force on 15th April. It is contained in the new Town and Country Planning (Development Management Procedure)(England) Order 2015 (“DMPO”). DMPO is a development order made under (amongst other powers) s.59 of the Town and Country Planning Act 1990. It seems to me that there is a serious flaw in the deemed discharge provisions.
In simple terms they work like this. An application is made in the usual way for the approval under the condition. Any time after six weeks later, a “deemed discharge notice” can be given by the applicant to the local planning authority under Article 29 specifying a date on which deemed discharge will take effect. That date is no earlier than when the period for determination in Article 27 elapses (eight weeks) and 14 days “after the day immediately following that on which the deemed discharge notice is received. (Actually all the periods are calculated in ways like that, so we need to read the small print carefully. Serving notice a day early is not a good idea.) Unless the local planning authority give notice of their decision on the Article 27 application before that deemed discharge date, or a later date agreed in writing, deemed discharge occurs on the date specified in the deemed discharge notice.
So, thinking about the small print, the deemed discharge is all subject to Article 30. This says that deemed discharge does not apply to conditions in the exemptions listed in Schedule 6. To address the environmental impact directive problems (encountered especially in the review of minerals permissions conditions over the past twenty years or so) the exemptions include permissions for EIA development, and development which would have been EIA development but for the condition. There are other exemptions for environmental and sensitive matters. And it does not apply to the approval of reserved matters. This post does not address them all.
But I do want to address a very significant exemption in Schedule 6 (paragraph 10). This states that the deemed discharge procedure does not apply to conditions attached to the grant of planning permission under a development order pursuant to s.59 of the 1990 Act. DMPO is just such a development order, made under s.59 – see my opening comments, and the deemed discharge provisions must be contained in a development order (see s.74A). DMPO gives the procedure for the grant of planning permission. As s.59 says:
“A development order may either—
(a) itself grant planning permission for development specified in the order … ; or
(b) in respect of development for which planning permission is not granted by the order itself, provide for the granting of planning permission by the local planning authority … on application to the authority … in accordance with the provisions of the order.”
Category (a) is an order like the “Permitted Development Order” (defined by DMPO to mean the GPDO 2015). Category (b) is the ordinary grant of permission. The grant of planning permission is made under DMPO. So paragraph 10 of Sch 6 appears to mean that all conditions on ordinary planning permissions are outside its scope. If that is right, deemed discharge does not work. If there is a clear contrary view I would be delighted to hear it – the comments facility is open.
Of course, we know what Para 10 is meant to be addressing; it should refer to conditions under Schedule 2 of the Permitted Development Order. Elsewhere in DMPO, the Permitted Development Order is correctly referred to. For example, in Article 27 where the time periods for decisions on conditions applications are made.
A simple amendment to paragraph 10 would deal with the problem, and I would urge DCLG to make that amendment without delay. Not to do so will leave a flaw to be exploited by those who would seek to stop development. It will be a trap for unwary and busy lawyers. It will create uncertainty, which funders will hate. The development industry will be very disappointed by this problem. I have not alerted DCLG to this view separately, though I will be sending them a link to this, because my experience of doing so on other errors in the past has been highly unsatisfactory.