Planning update

Eric Pickles, the secretary of state for communities and local government (SoS), continues to put pressure on the onshore wind farm sector through the planning system. While this plays to a political purpose, it runs the risk of affecting the confidence of investors in the energy sector in general. The latest step is a further extension of the recovered jurisdiction criteria on renewable energy developments. The first extension came about following the new renewable energy guidance issued in June on the basis that some such projects could significantly affect the delivery of national policy.

Since early October, a new reason has emerged for the recovery of cases, this being that they were renewable energy developments per se, which ensures that small schemes as well as large ones are covered. The stated rationale is so Pickles can ensure the guidance is being properly applied and is initially only to be in place until 9 April 2014. This has already resulted in a further 17 cases being reserved to the SoS for his determination. The renewables sector is bracing itself for more refusals in the light of this step and using the recovered jurisdiction power in this way is certainly unusual.

The increased risk of recovery is likely to lead developers to design projects, wherever possible, to exceed the 50mw threshold and thereby enter the Planning Act 2008 Nationally Significant Infrastructure Programme (NSIP) regime, whereas previously many had deliberately kept below the 50mw threshold. The NSIP regime avoids the uncertainty of recovery, ensures the application benefits directly from the presumption in favour of consent under the Energy National Policy Statements, and places the scheme in the hands of Department of Energy and Climate Change, who are considered to be keener to grant wind farm consents than the Departments for Communities and Local Government (CLG).

Further to our last update, the SoS has now issued the draft regulations and guidance for the optional extension of the NSIP regime to large business and commercial schemes in England. Such schemes often have the threat of call-in hanging over them, and one of the advantages of using the NSIP regime is to eliminate the potential delay caused by that uncertainty by guaranteeing the decision will go to the SoS.
 

Special measures

CLG has placed the first local planning authority (LPA) under special measures for under-performance under section 62B of the Town and Country Planning Act 1990 after failing specified performance criteria; the government has delayed making any designations for county matters for a further six months as the data is not considered reliable enough at this stage.

That council is Blaby Council, which has failed to either determine 30 per cent or fewer major applications on time; or has more than 20 per cent of major decisions overturned on appeal. Applicants can now choose to bypass Blaby and make applications for planning permission directly to Planning Inspectorate (PINS), although applications would remain subject to recovery by the SoS, even though they have been made directly to PINS. It is not clear how many developers will see this as an advantage as there remains a need to have a working relationship with the LPA after consent?is secured.
 

Appeals amendment

Important changes to planning appeals in England have been introduced from 1 October 2013. The English Development Management Procedure Order has been amended to speed up and make the planning appeal process more transparent. The changes will not apply to enforcement appeals but will apply to most appeals under section 78 of the Town and Country Planning Act 1990, including listed building appeals. The changes essentially require the frontloading of the appeal process to reduce the time for decisions to be determined.

Appeals against decisions made on or after 1 October 2013 will need to include, with the appeal form, a full statement of case, which sets out which procedure the appellant thinks is most appropriate and, if the appeal is to be heard by way of hearing or inquiry, a draft statement of ?common ground.

LPAs will be required to notify interested third parties, asking them to submit their questionnaire and supporting documents within one week of the appeal start date, and if not relying on their questionnaire as their full submission, to submit their full statement of case within five weeks of the appeal start date rather than six.

Measured from the appeal start date, ?hearings and inquiries will also be heard sooner; within 10 weeks and 16 weeks rather than 12 and ?20 respectively.

As appellants will need to undertake considerable additional preparation prior to submitting an appeal, they should carefully consider the changes. If they are not followed, late submissions may not be accepted or considered by the inspector, or the appellant may face an application for costs for unreasonable behaviour relating to the late submission of appeal documents.
 

LPA powers

The government has recently announced that the powers of LPAs in England to extend the life of permissions will be revoked. The intention is to put pressure on developers to use or lose their consent and discourage land banking. Whether this will have the desired effect will need to be monitored, but it is arguably more likely that developers will instead simply invest money in discharging pre-commencement conditions and implement by digging a trench, thereby preserving the ?permission indefinitely.

An alternative is that sometimes onerous pre-commencement conditions, which LPAs are increasingly imposing, will be appealed because securing discharge will take a sufficiently lengthy amount of time which may result in there not being an adequate amount of time left to secure contractors to implement the planning ?permission. This is an old issue, and previous changes such as reducing the standard period for implementation from five to three years were ineffective and reversed.

Implementing planning permissions which are subject to the Community Infrastructure Levy (CIL) could be expensive if there is no intention to build the site out, as levy payments will be triggered. The government has decided to delay by a further year, to April 2015, the restriction on LPA’s ability to pool CIL contributions.

This means s106 agreements with negotiated staggered triggers may provide an incentive for a while longer. Just how long remains to be seen as this is the second delay to pooling, and we wonder how many more there will be needed given that only 5 per cent of LPA’s have implemented charging schedules with a further 8 per cent in examination, and the previous pooling deadline date of April 2014 only five months away.
 

Revised errors

The recent case of R (on the application of Gleeson Developments Ltd) v Secretary of State for Communities and Local Government [2013] EWHC 3166 (Admin) gives some comfort to the PINS and LPAs which issue permissions in error and quickly realise their mistake. A housing appeal for a site in Wiltshire had been heard and the decision granting permission was about to be issued by PINS.

However, a last minute recovery direction was issued by the SoS to PINS as a result of the issuance of a draft neighbourhood plan after the appeal had closed. A PINS officer issued the decision without realising the direction had just been made.

PINS realised the error to the following day and issued a letter explaining the mistake and withdrawing the permission. The developer was unsuccessful in its legal challenge. The court held that a direction did not need to have been notified to third parties to be effective and did not need to be the subject of consultation.

In respect of the ability to withdraw the decision letter, Cranston J found that, while there is not an overarching ability to withdraw a decision letter, “it would be contrary to good administration to allow an administrative error of this kind...to have a permanent...effect”. This was in the context of a simple error and it being put right quickly. It was for this reason that the court also rejected a ?human rights argument, on the basis that an interference with any rights was minimal in light of the error being corrected so quickly.
 

Scottish construction quashed

A Scottish court case in relation to the Electricity Act 1989 regime has caused considerable impact in the Scottish electricity sector. Scottish ministers granted s36 consent for the construction and operation of the 103 turbine Viking Wind Farm in Shetland. It was quashed in the courts on two grounds, one of which being that the applicant for the s36 consent did not hold an electricity generation licence or an exemption when it applied for the consent. Unusually, this issue was raised by the judge not the parties.

The judgment focuses heavily on the obligations contained within Schedule 9 of the 1989 Act, which require a licence holder or exempt person to have regard to the desirability of preserving amenity, i.e. natural beauty, flora and forna etc., when formulating “relevant proposals”, and to do what he reasonably can to mitigate any effect which the proposals would have on such amenity.

In the judge’s opinion the Schedule 9 duty was intended to apply at the earliest stage of formulating proposals and it would be wrong if that duty could be avoided by postponing generation licence applications until after the grant of s36 consent. However, nowhere in the act does it state that an applicant for the s36 consent must be the holder of a generation licence or a person exempt from holding such a licence.

Scottish Ministers have appealed the decision and, most unusually, publicly stated that they will, ?in effect, disregard the decision pending the outcome of the appeal, which is due to be heard in February 2014. SJ

Julian Boswall and Cathryn Tracey are partner and associate in the Burges Salmon planning unit