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 do not accept liability in connection with it. If you do have a planning law question on which you would like advice, seek legal advice from a suitably qualified solicitor. Specific advice should be sought for specific problems.

Problems with the incorporation of the Strategic Environmental Assessment Directive into our law

 

HS2 tunnelI was prompted by an article about this to consider the SEA directive more fully[1].  The SEA Directive is rather broadly written.  It requires environmental assessment of “plans and “programmes” which are likely to have significant environmental effects.  But the problem is deciding what is a “plan or programme”.

The definition says they include plans and programmes (and modifications to them) which are (a) required by legislative, regulatory or administrative provisions and (b) are either (i) subject to preparation/adoption by an authority, at national regional or local level or (ii) prepared by an authority for adoption through a legislative procedure by Parliament or Government.  The directive also says that all plans and programmes prepared for (amongst other things) transport and town and country planning) which also “set the framework for future development consent of projects [falling under the normal Environmental Assessment Directive]” are to be assessed.

The issue arose seriously in England with HS2, the proposed high speed rail link from London to Birmingham and beyond (litigated in HS2 Action Alliance and others v. SoS for Transport [2013]EWCA Civ 920).  The Government announced its intention to build HS2 in a Command Paper (High Speed Rail, Decisions and Next Steps) which also said that the necessary powers and planning permission would be sought by a hybrid Bill through Parliament.  There was no assessment of the environmental effects under the SEA directive. But assessment would be done under the normal Environmental Assessment Directive at the hybrid Bill stage.  The complaint of HS2 Action Alliance in practical terms was that SEA requires wider consideration of alternatives than normal EA.  Indeed one of the reasons for SEA is that it allows for assessment of plans which are setting the scene and which will influence subsequent decisions, so alternatives are important as the field is narrowed.

HS2 Action Alliance claimed the Command Paper (usually called DNS) was a plan or programme required by administrative provisions which set the framework for future development consent.  So was it or not?

The problem is obvious; this is a high level plan in which the Government says it has decided it is going to build HS2.  It’s going to go from London to Birmingham so the route is broadly defined, though no doubt there can be wiggles (or more likely sweeping curves) and tunnels to avoid sensitive areas. But there are going to be constraints on that, and compromises.  The jurisprudence of the European Court of Justice maintains that broad approach to the directive:  for example it says “the definitions … must be interpreted broadly”[2], and “the objective of the directive is to provide for a high level of protection for the environment and contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes … likely to have a significant effect on the environment”[3].  It is sadly vague on the meaning of “framework”; it appears to say it is a term which must reflect the objective of taking into account environmental effects of the framework itself (which I do not think takes us much further) and definitely says that it is unclear how strong the requirements of a plan or project to influence individual projects must be for it to be a framework[4].  The vagueness which one might also call comprehensiveness continues in A-G Kokott’s opinion in Terre Wallone where she says: “To summarise it can be said that a plan or programme sets a framework in so far as decisions are taken which influence any subsequent development consent … in particular with regard to location, nature, size and operating conditions or by allocating resources.”

So did the Court of Appeal make things any clearer in HS2?  It decided that SEA was not necessary, and the main reason it came to that conclusion was that Parliament is free to disregard DNS.  It stated that to “set” a “framework” there must be some legal influence from the “plan or programme” on the subsequent development consent decision.  As Parliament is sovereign there is no legal influence.  That logic has some strength to it.  But the Court of Appeal also said it would not rule out the possibility that a plan or programme sets the framework where it has a sufficiently potent factual influence, unless the decision maker is Parliament.

So bets are hedged here and we continue to have uncertainty about whether SEA is needed – if there is legal influence it is; but there is still the possibility that factual influence will do.  This leads me to some questions and a plea.  My plea is for some greater certainty over this issue.  The repeal of the Regional Spatial Strategies was subject to voluntary SEA.  The NPPF was not.

And here are my questions.  The Court of Appeal decision hinges on the development consent decision being taken by Parliament. But what would happen if Government decided instead to use the Planning Act 2008 and seek a development consent order from the Secretary of State?  Under the DCO procedure, “important and relevant matters” must be taken into account.  The Government’s view can hardly be less than important and relevant.  Is that not a “legal influence”? Is it sufficient factual influence?



[1]  “Why Central Craigavon was wrongly decided (and other problems with the incorporation of the Strategic Environmental Assessment Directive into domestic law)” by Gregory Jones QC and others [2013] JPL 1074

[2] Inter-Environnement Bruxelles v. Region de Bruxelles-Capitale

[3] Advocate General Kokott in Terre Wallone v. Region Wallone

[4] Advocate General Kokott in Terre Wallone v. Region Wallone

Driveway taxes and material changes of use

Car parked in drivewayLast weekend saw DCLG announce that people should be allowed to rent out their driveways without the need for planning permission.

“Councils should be welcoming common sense ways that help hard-working people park easier and cheaply and for families to make some spare cash. Councils shouldn’t be interfering in an honest activity that causes no harm to others, unless there are serious concerns. Parking charges and fines are not a cash cow for town halls.

This government is standing up against the town hall parking bullies and over-zealous parking enforcement.”

But the Planning Officers Society is reported to be concerned about this.  “Planning” tells us

‘the Planning Officers Society (POS), which represents senior local authority planning officers, today said that councils that asked for a planning application in such circumstances were doing so because they considered the proposal to be a material change of use.

POS president Mike Kiely said: “The legal position on what is or isn’t a material change of use is for the courts to decide. All the government can do is highlight what the existing legal position is” ‘.

Oh dear. Whether there is a material change of use is a matter of fact and degree for the local planning authority not the Courts.  If you doubt this fundamental proposition of planning law, here is a concise statement from Carnwath LJ (as he then was) in Fidler v. Secretary of State and Reigate and Banstead [2004] EWCA Civ 1295: “Whether the use of land has changed in any manner that is material for planning purposes is a question of fact and degree for the decision maker to determine in the light of all the circumstances of the case”.

But the DCLG view seems to me to be unorthodox as well, at least as reported in The Times for 3rd August which said that planning permission would not be needed as long as the rent did not exceed £2400 p.a. How can the level of rent be relevant to whether there is a material change of use?

But perhaps I can offer the following suggestions.

(i) A driveway is a domestic driveway for the parking of cars of the owners and visitors to the house.  This will normally involve about two vehicle movements per car per working day, say four movements per day as a rule.  But if we add a rented space, and suppose the house is near a commuter railway station, that will increase the movements by 50%.  That might well be material.

(ii) I was told many years ago by a highway consultant that in yellow line zones there are restrictions on charging for car parking at a rate below that of authorised car parks, unless consent had been obtained under road traffic legislation.  The reason for this was so as not to undermine the effective restriction on traffic in the zone caused by limiting the number of spaces provided.  Why are councils not using that to enforce against renting out domestic driveways for parking?

What are the powers of the Planning Inspectorate?

James-MauriciAndrew-ParkinsonThere is an interesting article by James Maurici QC and Andrew Parkinson, both of Landmark Chambers, in the latest edition of the Environmental Law Review.  It concerns the need for appropriate assessment under the Habitats Directive, which must be undertaken by each competent authority if there is a likelihood of significant adverse effects on any European Site (I summarise and truncate for brevity).  The Chief Executive of the Planning Inspectorate had written to an objector to say that the Inspector would consider if the effect of the proposal would be to have a significant adverse effect on a nearby SAC and if so would undertake the necessary appropriate assessment.  Before then, the Environment Agency, also a competent authority and from whom a permit was also needed, had ruled that in its view the proposal would not have a significant effect.  It granted its permit after the close of the inquiry and before the Inspector’s report.  The Inspector did not carry out an appropriate assessment and relied on the fact that the EA had granted a permit as indicating that appropriate assessment was not necessary.  The objector, Cornwall Waste Forum, challenged that decision claiming a legitimate expectation that the Secretary of State, as the other competent authority, would determine the likelihood of significant effects.

One of the reasons the Court of Appeal rejected the claim was that the Planning Inspectorate has no power to bind the Secretary of State.  This is of course quite right.  This case had not been delegated to the Inspector to decide and so it was for the Secretary of State to proceed as he thought fit, free from any assurances given by the Planning Inspectorate.  As Maurici and Parkinson comment “Carnwath LJ’s finding that the Planning Inspectorate and the Inspector had no authority to bind the Secretary of State’s application of regulation 65 means that pre-inquiry correspondence (whic is likely to be through the Planning Inspectorate) in unlikely to found a legitimate expectation against the Secretary of State in the future.”  But this also operates as between the Inspectorate and the Inspector.  Maurici and Parkinson say that inconsistency of approach between Inspectorate and SofS/Inspector may give rise to a natural justice or procedural impropriety claim in future.  But this is a long (and not entirely reliable) way round to enforce what is in effect a procedural ruling by the Planning Inspectorate.

The Inspectorate needs to have a way of making procedural rulings before an Inquiry, but currently I know of no power to do so. It has duty inspectors available who make such rulings already, but it has always seemed to me that their decisions are liable to be overturned by the Inspector deciding the case.  Has the time not come to put the pre-inquiry (or pre-hearing, or pre-written reps decision) rulings on a proper legal basis?  Especially when the Inspectorate is under some cost and time pressure.

If you would like to read the article it is at [2013] Env L Rev 152. (And yes those are the authors above, in alphabetical order.)

Hilary Benn – “local communities should decide”

Hilary Benn pic A somewhat surprising alliance between the Daily Telegraph and Labour’s shadow secretary for Communities and Local Government – Hilary Benn – has emerged this morning, with an article by Hilary Benn headlined “The Coalition have got it wrong over planning”.

So let us recall what the Coalition (or rather the Conservative policies adopted by the Coalition) have done in planning.  They have abolished the “hated top-down housing targets”, hand in hand with the creation of “localism”, abolished the Infrastructure Planning Commission quango and put sustainable development in the centre of the presumption in favour of development, rephrased as the presumption in favour of sustainable development.

And now let us consider what Mr Benn says.  “Local communities should decide where they want new homes and developments to go and then give their consent in the form of planning permission.”  This is just what Eric Pickles says, and what the Conservatives have been saying since well before the last election. But they should not get all the credit, because John Prescott said much the same thing.  His 2004 reforms of the local plan system were driven by his belief that if you gave people a say early enough in the system they would engage and be able to decide what should be built and where.  He, Hilary Benn and indeed the current administration repeatedly protest that if you give local people the power to decide they will take responsible decisions.

Second Mr Benn says that unpopular and inappropriate developments permitted by a national quango reporting direct to  ministers will give rise to much anger.  The quango in question here is the highly respected Planning Inspectorate which will take decisions when local authorities are designated because, for example, they are too slow.  The decision is actually to be taken by the Secretary of State.  The democratic safeguard of a report to ministers is there, though Benn seems to criticise it.  Were it to be missing, I would agree with him.  But significantly, the last Labour administration put in place the Infrastructure Planning Commission which took decisions with no democratic accountability.  I haven’t checked how Mr Benn voted, though he is likely to have followed the Government whip and voted for that.

What about sustainable development. Mr Benn’s article is silent on this but the Telegraph has some information from the Labour party: “Labour sources said last night that the party would scrap the Coalition’s National Planning Policy Framework (NPPF), which came into force earlier this
year and requires councils to promote “sustainable development” in planning decisions.”  Now I thought that sustainable development was a good thing.  But the DT at least seems think differently:  “This newspaper’s Hands Off Our Land campaign last year led to the Government
watering down changes in the NPPF, although it still contained a bias in favour of sustainable development.”  But Benn opens his article with a critique of the NPPF, complaining that local authorities were given only 12 months to get their plans in place, or the NPPF presumptions would take precedence.  This really is disingenuous.  The plans in question are those being drawn up under John Prescott’s Planning and Compensation Act 2004 – almost a decade has passed for councils to get those plans in place.  More accurately, 65 years will have passed next month since the Town and Country Planning Act 1947 came into force which placed local development plans at the heart of the system, but which experience has shown are slow in the making.

In his drive to give local communities full decision making power Mr Benn concludes that in his experience if you give people responsibility for these things they will respond.  “If they get it wrong there will be no-one else to blame for the lack of new homes” he says.  But there will be someone else responsible – the Governments which abdicate responsibility for taking the unpopular decisions the nation needs.

 

Nicholas Crane and “We want a say”

Towns With Nick CraneThe market town which has been the subject of these “We want a say” posts is Saffron Walden and this week just past saw a television programme on Saffron Walden in the BBC’s series “Town”.  This is a series in a similar mould to Coast and is presented by Nicholas Crane who also presented Coast.

The programme on Saffron Walden began as a most interesting review of the history and geography of the town, but moved on to consider the development against which “Your chance to say no” has been campaigning.  Whilst Crane, who is a geographer (and local boy, having studied at the forerunner of the Anglia Ruskin University in Cambridge) recognised that towns change and must change as time marches on he came out with some quite extraordinary statements about planning in this country.  First he asserted that the new housing was a “response to Government imposed targets”.  And second he stated that our landscapes have been protected by a “fundamental principle of planning” that “the long term use of land takes precedence over an owner’s right to profit”.  How long, he asked, can that principle survive?

Where does Crane get this from?  The current Government, with great fanfare, has deliberately abandoned what it usually describes as the “hated top-down housing targets”.  And where do we see a principle of planning that long term use trumps the owner’s right to profit?  If that were a principle there could never have been any change, because change would always be from the previous “long term use”.  Agriculture would have triumphed, there would be no urban growth. Instead, towns would have become more and more crowded. Does Crane want a return to the high-rise blocks of the 1960s (shortly before he studied geography)?  For that would the consequence of the principle he claims is fundamental to our planning system.  How does he see that in relation to the “presumption in favour of development” which certainly is fundamental to planning?  And where does he find his principle written down?

It is very sad that broadcasters of popular television programmes should put out myths like this and simply fail to research mainline Government policy properly.

Still, in its favour “Town” did dispel one myth.  The “Your chance to say no” campaign says that the plan is for “thousands of new houses” in Saffron Walden.  Crane gave the local councillor with responsibility for social housing the opportunity to point out that the number in the plan is actually 860 – not exactly “1000s” even when added to the 440 already permitted.  The best the campaigner interviewed could say was that developers will come back later for more.

We want a say – postscript

The outcome of the election I described in my last post was that the independent candidate opposing the development was elected, in a very close contest.  He ousted the sitting member by 48 votes, just 0.1% of the votes cast, garnering the support of 2079 voters.

However, there is more confusion and some irony, because he was standing for election to the County Council.  The County does not of course have any planning powers in relation to housing development. So I am baffled as to how the candidate, now member, is going to fulfil his election promise “Your chance to say NO”.  In fact, he is on the council which has the opportunity to make good the defect from which the development most suffers – the need for a new road from the west of the town.

We want a say

Visiting my local market town on Saturday I stopped to look at a large map of the town – about twelve feet by twelve feet – spread out on the pavement as part of the election campaign for Thursday’s local elections.  It particularly attracted my attention because was obviously about planning and was headed “Your chance to say no”.  There was a good crowd around it.

Of course the inevitable happened and someone campaigning on the candidate’s behalf came over to bend my ear.  But what was interesting was her opening line – “we just want to have a say” in a proposal for “1,000s of new houses”.

Well I suppose it is her misfortune to have chosen me. I pointed out that the system allows for a considerable say and asked if she had taken advantage of it.  Which brought the surprising reply, “No”.

Well we had an amiable conversation and I explained the local plan system (to flickers of recognition) but at the core, the complaint was not really just “no say” but about the development scheme itself – “we don’t like the scheme”.

In fairness to the actual candidate, who is an independent with considerable and admirable courage,  the written material recognised the local plan system but challenged the local council’s apparent re-allocation of considerable numbers of houses.  What is sad about this is the misrepresentation to voters, and misunderstanding of the system in which – as I have blogged before – public consultation and involvement has been at its heart since 1948.

Judicial review – time limits reduced in planning cases

The Secretary of State for Justice

The Secretary of State for Justice

The Lord Chancellor and Secretary of State for Justice, Chris Grayling yesterday announced that the time limit for commencing a planning judicial review will be reduced from three months to six weeks. The plan is to make the change this summer.  There will be other changes. In procurement cases, it will drop to 30 days. And some of the rights to renew applications where permission to commence them is refused will be curtailed. In “hopeless” cases (or in more measured language, cases which are totally without merit) there will be an absolute bar on renewals.

I blogged about this here last November when the Government consulted on this.  The Lord Chancellor concedes that the majority of consultees opposed his proposals, but is going ahead nonetheless.

For the recipients of planning permission, this is good news. But at some stage experienced players in the property industry will contemplate bringing JR proceedings themselves.  In practical terms, it will be necessary to move extremely quickly in order to meet the new six week limit.  And it will be necessary to be vigilant.  The pre-action protocol in such cases is likely to fall by the wayside as there will not be enough time for responses and compliance. I rather doubt that is a big problem, because planning permissions, even when issued unlawfully, are expensive things to revoke.  There is however a risk of more JRs, issued on a precautionary basis to avoid missing the deadline.

Invalid Planning Agreements – Secretary of State’s decision quashed because the s.106 wasn’t a s.106.

eric picklesA planning agreement has been found invalid and the planning permission it supported has been quashed in the recent case of Westminster City Council v. Secretary of State (27th March 2013). It is a salutary case.

The SofS granted permission on appeal. There was a deed submitted and claimed to contain planning obligations. They were:

1              Not to apply for a parking permit

2              To notify prospective owners that they will not be entitled to apply for a parking permit

3              That leases of the property will contain a covenant in favour of the lessor and Westminster City Council not to apply for a permit, and

4              To send the council a copy any lease granted.

In an admirably clear and short judgment the Court held this was not within s.106(1) and was therefore not a planning obligation. Nor of course would it run with the land.

As a consequence the permission was quashed as the Secretary of State had taken it  into account.

So the lesson for applicants and appellants is to ask whether the promises you want to put into your planning agreement do fall within s.106. For example, will that promise to comply with a travel plan fall within s.106?

Planning authorities will want to ask themselves the same question. In the Westminster case, it is interesting that the validity point was not taken at the planning appeal. It was not raised until they made the High Court challenge.

But there are also lessons for the Secretary of State.  His Inspector granted permission in his name on the basis of a set of promises which were not s.106 obligations. They were unenforceable against successors in title. The Inspector spent time checking that they met the  old policy tests in Circular 5/05, now unhelpfully turned into restrictive legal tests by Reg 122 of the CIL regulations. But he failed completely to consider the basic point: were they actually under s.106 at all?  Because if they weren’t they would be unenforceable once the property was sold. But if s.106 had not been rewritten in 1991 by the Planning & Compensation Act this problem would not have happened. The previous wording, in s.106 as enacted in 1990, and its predecessor, s.52 of the 1971 Act, was much wider.

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. But this ignores the uphill struggle experienced by those who get and give proper advice. They are faced with surprise and incomprehension when they raise the question of whether the promises are within s.106 and try to draft to keep within its boundaries.  And when drafting within the boundaries it is not always easy to produce something which is workable.  The judge in the Westminster case was shown drafting which did meet s.106’s constraints and commented that the result was draconian. It required use of the dwelling to cease if anyone applied for a car-parking permit. The judge doubted the court would eject a family for such a breach.

DCLG also keeps saying that ministers are not interested in s.106 as we now have CIL.  But CIL does not totally replace s.106.  Planning agreements are still appropriate and needed for on-site issues and not all councils – 25%I recall – are expected to introduce CIL

The Inspectorate itself, staffed by experienced planning professionals, has failed to spot a fundamentally flawed planning agreement. Westminster City Council also failed to spot it until the last minute.

The result is the waste of several thousands of pounds of taxpayers money in legal fees quashing the Secretary of State’s decision.   Westminster’s costs will of course have to be met by DCLG.

The failure of DCLG to amend s.106 wastes the time and money of landowners, developers, planning authorities and now Central Government which will have to pay Westminster’s costs.  Surely DCLG will now see the wisdom of addressing the problems of the straitjacket which is s.106.

Lyveden New Bield v. Barnwell New Windfarm – pay attention

Lyveden_New_BieldLast Friday the National Trust, English Heritage and East Northamptonshire District Council succeeded in quashing the Secretary of State’s decision to grant permission for a wind farm which would affect the setting of Lyveden New Bield, the Grade I unfinished Tudor house and garden.  They succeeded on three grounds, failure to give effect to the duty to pay special regard to the desirability of preserving the building or its setting or its features of special architectural or historic interest (s.66(1) of the Listed Buildings Act 1990), failure to interpret and apply planning policy correctly and failure to give adequate reasons I am not going to look at the second and third grounds, but the first ground causes difficulties when we think about the traditional approach to material considerations.

Section 66 speaks of the need to pay special regard to the desirability of preserving the setting.  The case law history of the section began in 1988 with Steinberg v. Secretary of State, a decision which surprised most planning lawyers, the more so as it was a successful challenge by two litigants in person.  The Court decided that there was no evidence that the equivalent provision for conservation areas, which required special attention to be paid to the desirability of preserving or enhancing the area, had been taken into account.  Importantly it held that the underlying purpose of the section was positive, rather than simply preventing harm.

Then in Bath Society v. Secretary of State, the Court of Appeal volunteered views on what paying special attention meant. It must, they said, be regarded as having considerable importance and weight.  The House of Lords in South Lakeland v. Secretary of State had to consider Bath and the Steinberg and said that “There is no dispute that the intention of section 277(8) is that planning decisions in respect of development proposed to be carried out in a conservation area must give a high priority to the objective of preserving or enhancing the character or appearance of the area. If any proposed development would conflict with that objective, there will be a strong presumption against the grant of planning permission, though, no doubt, in exceptional cases the presumption may be overridden in favour of development which is desirable on the ground of some other public interest”.  And so, in Lyveden New Bield the Court said that “a decision maker should accord considerable importance and weight to the “desirability of preserving…the setting” of listed buildings”.

This line of reasoning however goes contrary to the classic approach to material considerations which is that weight is for the decision maker to decide –see a string of cases such as Seddon Properties in 1980, ending in Tesco v. Secretary of State in 1995. The Court in Lyveden recognised this and said that the words of Lord Hoffman in Tesco had to be qualified when s.66 is in play.  It also goes contrary to the language of the sections, which simply state that special regard or special attention is to be paid to a particular aspect.  The duty to pay regard to something has long been held to be just that; pay regard, and having paid regard, take your decision. But the decision does not have to accord with the thing to which you have paid regard. So paying special regard should be approached in the same way. Look at this factor especially, think about it very carefully, and having done so, take your decision.  If Parliament had wanted to say that the factor was to have extra weight, it could have said so. But it didn’t, and rightly so, because if it had done that it would have had to have said how much extra weight, and in a system where weight of everything else is left to the decision maker, you can’t do that without specifying the weight to be given to everything.