Update: planning

Open source planning

The coalition government has caused widespread concern in its delivery to date of its 'localism' agenda. One planning QC has already coined a new acronym '“ WAGBUTT: Will Anything Get Built Under The Tories?

The rapid abolition of regional strategies has certainly got the undivided attention of the development community and other interest groups. These documents were effectively revoked by the secretary of state for communities and local government, Eric Pickles, by way of an open letter on 27 May with formal revocation confirmed on 6 July 2010.

This has been done without any of the extensive consultation and transitional arrangements that usually come with planning reforms of this scale. The concern is that the revocation has left a policy vacuum which, coupled with an uncertain and fragile market, could disproportionately hinder or even be the downfall of many large-scale developments and future strategic investment.

This unhappy situation already appears to have been borne out. Research commissioned by the National Housing Federation (NHF), following the government's announcement in May, found that many local authorities have already significantly scaled down their plans for new homes as a direct consequence of the government's reforms, with a total of almost 85,000 planned homes being scrapped by local authorities in England. This has been confirmed by the Chartered Institute of Housing in the South West, which reported in August that plans for 59,750 homes in the South West alone have been scrapped, yet the South West's population is expected to rise by 24 per cent by 2031.

Possibly the most significant move to date has been house builder CALA Homes' decision to launch a legal challenge against the government's revocation of regional strategies. CALA's challenge arises out of its proposals to build 2,000 homes on a site that was identified in the South East regional plan, which CALA wants reinstated.

The RSS abolition will have impacts far beyond house building, particularly in relation to renewable energy, regeneration, transport and minerals and waste.

Renewable energy provides an interesting case study because the government has very demanding and legally binding obligations to hit EU targets which are threatened by the RSS abolition. In particular, there is a de facto EU target of 30 per cent minimum renewable electricity by 2020, which can only be met with a very steady stream of onshore wind farms. Regional targets have been vital in securing wind farm permissions in England to date, and, without them, it is necessary for developers to fall back on a wider need argument, which is harder to make at public inquiry.

Such is the overall concern that an unlikely alliance of environmental, planning and house-building bodies and organisations '“ under the leadership of the Royal Town Planning Institute and including the NHF, Campaign to Protect Rural England and Friends of the Earth '“ have written jointly to Eric Pickles to express these concerns and request an urgent meeting to discuss the localism agenda to ensure that it does not miss the bigger picture.

While the focus to date has been on RSSs, the coalition is also proposing a radical change to the development plan making process which many fear is unworkable and will be a NIMBYs charter. It is also proposing a third party right of appeal, whose details are unclear, but which has been consistently opposed by developers when mooted in the past, as a result of the delay and uncertainty it gives rise to on the grant of planning permission.

The pace of change in the planning regime for the last ten or so years has been exhausting, and it is clear that there will be no let up under the new government. It is disappointing that an obviously rushed Conservative pre-election green paper Open Source Planning is being implemented in the way that has been so far. The one bastion of calm is Wales, which wisely avoided the temptation to follow the English Local Development Framework under Labour and is only proposing modest changes under its current planning review.

Penfold review of non-planning consents

An independent review of non-planning permission consents, commissioned by the Labour government, has been published for consideration by the coalition government. The review, led by Adrian Penfold of British Land, focuses on the various consents which are often needed in addition to planning permission for development. Its aim is to propose changes which will make delivery of these consents simpler, more efficient and more coordinated.

The review is a useful reminder of just how wide the range of possible consents can be. It is undoubtedly true that these consents can hold up developments and involve a disproportionate amount of time and trouble when the key decision to grant planning permission has been made.

The review puts forward 12 areas of recommendations, some of which are clear proposals for legislative changes, which are sensible and welcome, and most of which are 'soft' recommendations about process and coordination. These are all laudable but it is hard to see some of them being implemented meaningfully because of public services cuts and the likely 'fire fighting' mode which many of the relevant bodies will inevitably enter.

On the legislative side, he recommends merging conservation area consent with planning permission and having a single heritage consent covering listed building and schedule monument consent decided by the local authority. He is complimentary about the process of simplifying environmental consenting which has been carried out by DEFRA and the Environment Agency. He considers that a similar approach of creating an umbrella consent could be applied to certain groups of connected consents, including highways and species-related consents.

Penfold seeks to address under-resourcing in the public sector by urging wider use of planning performance agreements, more charging by consenting bodies for 'premium' services and more joint working. These can only ever be a partial solution with the scale of cuts now contemplated.

Penfold makes a compelling case for the role of non-planning consents to have much greater profile and clarity, with a clearer and more proportionate operation in practice. He rightly highlights the importance of being clear whether consents go to the principle of the development proceedingat all, or merely to the detail of its implementation. This issue can get blurred and it must be right that the principle decisions are made at the same time if possible. It is hoped that the government responds positively to this report.

Commercially sensitive information

Objectors to a redevelopment scheme in Bristol submitted a freedom of information request under the Environmental Information Regulations 2004 to Bristol City Council. As required under PPS5, thedevelopers had submitted financial viability information to the planning authority demonstrating why the demolition of a listed building was justified.

The request was refused by the council on the grounds the information was commercially confidential and therefore exempt from disclosure. The matter came before the Information Tribunal after the information commissioner had upheld the objector's original appeal and concluded that information submitted as part of a planning application could not be regarded as confidential.

The Information Tribunal in Bristol City Council v Information Commissioner's Office And Portland And Brunswick Squares Association [2010] UKIT EA rejected the commissioner's reasoning and held that information submitted with a planning application was still capable of being confidential. However, the Information Tribunal ordered release of the information on the grounds that the commercial confidentiality exemption was outweighed by the public interest test. The fact the viability information was a material consideration of particular significance to the council's decision to grant permission was a key issue for the tribunal.

Commercially sensitive information is often provided by applicants in support of an application, and as in this case the information is submitted in compliance with the requirements of planning policy. While the tribunal stressed that its decision should not be treated as setting a precedent, it is likely to be cited by third parties making requests for sensitive information. Applicants, and their agents, should check all information carefully to ensure its submission is necessary. They should also heed the observation of the tribunal that, following the introduction of the Environmental Information Regulations, no developer should be given a guarantee by a local planning authority that information will be kept confidential.

A new duty to enforce?

In Ardagh Glass V Chester City Council [2010] EWCA Civ 172, Ardagh Glass applied to the High Court to quash the retrospective consent for a competitor's glass container factory. It was accepted that the factory was an Environmental Impact Assessment (EIA) development. The case considered the acceptability of a retrospective consent for EIA development and whether there was an obligation on planning authorities to take enforcement action against unauthorised EIA development.

The Court of Appeal upheld the first instance judgment that it is possible to obtain retrospective planning permission for EIA development. The court relied on principles of common sense and proportionality, arguing that it would serve no purpose '“ least of all protection of the environment to prevent such permissions in principle.

A mandatory order compelling the planning authority to serve an enforcement notice on the unauthorised development had been granted at first instance. The High Court judge, Mole J, considered the EIA Regulations to place an obligation on planning authorities to take enforcement action against unauthorised EIA development to prevent such development becoming immune from enforcement action. A refusal or failure to take action would lead to unauthorised EIA development effectively obtaining planning permission without having complied with the EIA Regulations.

The decision sets a new and important limitation on the normally wide discretion which planning authorities have to take enforcement against unauthorised development. The fact the immunity period had not expired was a key factor in the court's decision. It leaves unresolved the question of how planning authorities and the courts deal with unauthorised EIA development that has obtained immunity from enforcement.