Update: planning

The government's ambitions for community engagement and true localism to embrace sustainable development, and not just revert to NIMBYism, will be given a severe test in the coming years

National planning policy framework

The government has now published its national planning policy framework in draft, at the same time as bringing the new national policy statements (NPSs) for energy projects into force.

The NPSs only apply to specific categories of national infrastructure project, including large power stations, grid connections and gas pipelines. Their key role is to establish the overriding policy need for such developments, while accepting that there can be cases where the adverse impacts of a proposal outweigh its benefits. Other NPSs will follow.

The framework applies to the mainstream planning regime. It is the most dramatic change to the structure and form of planning policy in England for decades. It will lead to the simultaneous cancellation of almost all of the current suite of planning policy statements (PPSs) and minerals planning guidance and various letters to chief planning officers. The saving of paper is breathtaking '“ from over 1,000 pages to just over 50 pages long. Long established and important paragraphs and phrases across many subject areas (housing, energy, transport, etc.) which have been tested at length at inquiry, and sometimes in the courts, will disappear overnight. Planning professionals will initially be at a loss at the disappearance of hundreds of pages of detail (though few, if they are honest, were ever close to being on top of it in full). Each nuance of every sentence in the framework will be scrutinised going forward in reaching a new balance of argument as to what it actually means. It is almost short enough to commit to memory.

It is hard to know at this stage whether this new framework will be a good thing or not, and confident predictions are difficult to make. The brevity of the document may bring about a focus on the essence of what is important, or may lead to a vacuum. Something similar was done in Wales with the creation of planning policy Wales, which has a suite of technical advice notes (TANs) sitting beneath it. This disapplied PPGs in Wales and the scale of the apparent policy simplification was similar. The more detailed TANs have still tended to get the real attention. The framework is not intended to be supported by TAN-equivalents, which is a big difference to Wales.

The heart of the framework is the introduction of a formal presumption in favour of sustainable development, as part of a continuing plan-led system.

The framework sidesteps a real definition by saying that 'when taken as a whole, the policies in this framework set out the government's view of what constitutes sustainable development in practice and how the planning system is expected to deliver it'. A local planning authority with an out of date development plan, will be expected to grant planning permission except where the 'adverse impacts of allowing development would significantly and demonstrably outweigh the benefits' when assessed against the overall framework.

The framework certainly reads like a developer's charter, though with suitable nods towards environmental protection, and it has been interpreted as such by the likes of the National Trust. This is particularly the case where the development plan is out of date, as most are. The government's ambitions for community engagement and true localism to embrace sustainable development, and not just revert to NIMBYism, will be given a severe test in the coming years. Developers will inevitably present their schemes as delivering sustainable development under the framework, as is routinely the case for many already. When testing this claim, whether councillors on planning committees will genuinely see the world any differently as a result of the framework is hard to say. The framework certainly incentivises local authorities to reach the apparently impossible dream of having an up-to-date development plan. The most powerful, but untested, mechanism for bringing about a pro-development mindset on more planning committees would, however, be for planning inspectors collectively to deliver a markedly higher success rate on appeal, coupled with regular costs awards for unreasonable refusal. If the framework were to be backed by this approach, then a change in culture, ultimately avoiding appeals, could happen quite rapidly. Absent that, and a system of getting fit for purpose development plans in place quickly, the jury is very much out as to whether the framework will help to deliver the economic growth the government is looking for.

Cala Homes: taking stock

Cala Home's judicial challenge of the government's attempted abolition of the regional strategies drew to a close earlier this summer. Although Cala's appeal was dismissed, the terms of the Court of Appeal's decision have been welcomed by the development industry as providing much needed clarity on the status of regional strategies.

Last summer Cala challenged communities and local government minister, Eric Pickles', attempt to revoke regional strategies using powers contained in the Local Democracy, Economic Development and Construction Act 2009. The High Court upheld CALA's challenge and ruled that the revocation was unlawful. In response to that decision, the government issued a letter advising that its intention to revoke regional strategies through its localism bill should be a material consideration for decision makers when determining planning applications and appeals. Cala challenged the lawfulness of that letter. While Cala lost that challenge, the Court of Appeal did make it clear that the intention to revoke could not be a material consideration in development plan making, and was only likely to be a material consideration in very few individual planning decisions. This was due to the fact the localism bill had yet to receive parliamentary approval, and that the revocation itself was to be subject to strategic environmental assessment (SEA).

Overall Cala's decision to litigate has been vindicated and they have done the development industry a significant service by ensuring an orderly move away from regional strategies, with real weight being given to them until they are formally revoke, thereby assisting many schemes. The courts have also given government a useful reminder of the limits of change for impatient ministers keen to implement their programme.

Localism bill

The localism bill continues its passage through parliament, with the third and final reporting stage in the House of Lords scheduled for early September, and is on track to receive Royal Assent in November of this year.

Given the range of matters the bill covers, it is not surprising that there have been numerous proposed amendments both in the Commons and Lords. The vast majority of these proposed amendments (including those proposing third party rights of appeal) will not find their way onto the statute book. However, a government amendment regarding financial incentives has sparked controversy.

The amendment relates to the new homes bonus (NHB) and is intended to strengthen the effectiveness of that initiative. NHB is a payment made by central government to local authorities calculated on the number and type of houses consented in that planning authority's area. The government has proposed an amendment to the localism bill which will see the level of NHB payable become a material consideration for determining planning applications.

The amendment has been criticised as overriding well established principles governing planning gain. These principles say that financial contributions not directly related to a development cannot be a material consideration. There is a fear this amendment will lead to a perception that planning permissions are being bought and sold, and erode confidence in the system.

Although these concerns are understandable, the terms of the amendment mean that only payments received under NHB or the community infrastructure levy can be a material consideration. Payments received directly from a developer (such as community benefit payments) will remain outside the decision making process.

Time limits for judicial review

R (Buglife) v Natural England [2011] EWHC 746 (Admin) is a recent Administrative Court judgment which substantially changes the long-standing position on judicial review time limits in some planning cases.

Until now such claims had to be brought 'promptly, and in any event not later than three months after the date to make the claim first arose'. This meant that a claim brought within the three month time limit could still be regarded as out of time, and claims were frequently defeated on that basis.

The effect of the judgement is to create a two speed system. Where a claim is brought based on EU law, a full three months is allowed. However, the old rule, requiring promptness, still applies to claims based on domestic law, as previously held in Andrew Finn-Kelcey v Milton Keynes Borough Council [2008] EWCA Civ 1067.

Buglife began their claim two days before the end of the three month deadline. The challenge concerned the adequacy of surveys undertaken forming part of the environmental impact assessment (EIA) for the very large business park proposal.

The respondents argued that Buglife had failed to apply promptly as required under the Civil Procedure Rules. In response Buglife relied upon the decision in the case of Uniplex (UK) Limited v NHS Business Services Authority, a procurement law case. In Uniplex the European Court of Justice had ruled that the promptness test was insufficiently precise and should not be applied in cases relating to European legislation. The court held that the general and core principles of Community law are applicable to all directives, whether procurement or EIA.

Many planning judicial reviews involve the EIA directive and the habitats directive and Buglife will be of assistance to claimants, often NGOs or local residents seeking legal aid, in making timely claims. Overall, however, this kind of two speed system is very unusual and is bound to give rise to complications going forward, doubtless including the situation where weak or artificial EU law arguments are run to try to rescue a domestic law claim which would otherwise be in difficulty meeting the promptness test. The safest course will be to seek to meet the promptness test anyway unless there all the arguments being run are pure EU law ones.

Immunity from planning enforcement and deception

In a case which has attracted significant media coverage, Secretary of State for Communities and Local Government v Welwyn Hatfield Borough Council [2011] UKSC 15, the Supreme Court has denied Mr Beesley a certificate of lawfulness for his luxury dwelling disguised as a hay barn. In doing so, however, the court has introduced some unwelcome uncertainty into the operation of aspects of the planning enforcement regime.

It is clear that the court had an overwhelming determination to ensure that the enforcement immunity rules, which Mr Beesley was relying on, did not reward the admitted deception carried out by him in obtaining permission for a hay barn, but fitting the 'barn' out as a dwelling, which he lived in for over four years.

To deny Mr Beesley the Court has reached a rather forced interpretation of section 171B(2) of the Town and Country Planning Act 1990. It held that there had been no change of use to use as a dwelling house, contrary to the view in the Court of Appeal. In particular, it concluded that a change of use has to involve a change from actual use, not permitted use. In addition the Supreme Court found that as a matter of public policy, Mr Beesley should not benefit from his own deception.

The courts' decisions sits uncomfortably with the long-standing regime of immunity from planning enforcement after clear time periods have accrued, and creates uncertainty as to how it will operate in practice. This case may be overtaken by provisions concerning planning concealment in the localism bill, though there is a danger that these changes '“ if they are enacted '“ will create their own difficulties as well.