02/11/2011

By Martin Goodall, Commercial Property Team, Keystone Law

There has never been a time within the past 30 years when planning law has not been in a state of permanent flux. According to planning law specialist Martin Goodall, that situation continues unabated.

The courts are still producing an unending stream of judgments on a wide variety of issues affecting developers. Important amendments to the Localism Bill have recently been tabled and more can be expected as the Bill continues its passage through parliament.


Scrapping regional planning

The Localism Bill has come in for a great deal of criticism from planning professionals, who recognise the potential damage that its provisions could do to the planning system. Abolition of Regional Strategies was an early bone of contention.

Cala Homes have doggedly pursued their legal challenge to Eric Pickles' original attempt to sweep away this top tier of planning policy in advance of the Bill becoming law. Cala have a very real interest in this as they have a major planning appeal pending near Winchester, which could be seriously affected if the Regional Strategy for the South-East is set aside or disregarded in that case.

Following their initial success, Cala have carried on their legal fight against the government's wish to treat its intention to get rid of regional plans as a relevant factor in the determination of current applications and appeals, and at the time of writing a reserved judgment is awaited from the Court of Appeal on this issue.

The main criticism of the abolition of Regional Strategies is that, following the scrapping of County Structure Plans by the last government, there will now be no strategic planning policies beyond the purely local level. Ever since the 1947 Act there had been an overview of planning policy at least at County level.

There seems to have been some dim recognition of the need for something more than a purely local approach to planning policy in the Bill's rather weak duty on local authorities to co-operate with each other in formulating local plans. Critics of the Bill have persuaded the government to address this issue and amendments aimed at strengthening the duty of Councils to co-operate with each other in preparing their Local Development Frameworks will be debated in the Commons shortly.

Neighbourhood planning

Meanwhile, the Bill provides for the devolution of planning functions down to an even more local level through what is referred to as ‘Neighbourhood Planning'. These provisions have also come in for a good deal of criticism, and the government is now proposing to amend the Bill to strengthen the qualifications required for a group of residents to apply to be recognised as a ‘neighbourhood' with power to make a neighbourhood plan.

These planning powers are much less extensive than early ministerial statements may have suggested. To start with, neighbourhoods will not be given power to decide individual planning applications - that power will remain with the existing local planning authority. What neighbourhoods will be allowed to do is to formulate a neighbourhood plan - a set of planning polices which will apply to that particular area. But even here, local residents' freedom of action is strictly limited. They can only produce a neighbourhood plan which is consistent with the Local Development Framework adopted by the local planning authority. So, if the district-wide plan calls for a certain number of houses to be built across the district, a neighbourhood plan cannot exempt a particular area from that requirement.

One innovation, which the government announced in March, is the ability of local businesses to apply to be treated as a ‘neighbourhood' for the purposes of producing a neighbourhood plan. The details of this proposal have now been included in government amendments to the Localism Bill.

Concealed development

One interesting problem which has reached both the Court of Appeal and the Supreme Court (in two different cases) is the issue of ‘concealed' development. Development becomes immune from enforcement after a certain period of time without the local planning authority taking enforcement action against it - either 4 years or 10 years, depending on the nature of the breach of planning control involved. But what if the developer has deliberately concealed the development?

In a case in Welwyn-Hatfield, the Court of Appeal decided that, as the law stands, concealment of the development made no difference. However, the Supreme Court disagreed and overturned that decision, so that deliberate fraud by a developer in concealing the true nature of a development will prevent a claim to immunity from enforcement based on the 4-year rule (or the 10-year rule where it applies). But the Supreme Court made it clear that this disqualification does not apply to mere concealment of a development; it is actual fraudulent conduct which prevented the developer from benefiting from his actions in the Welwyn-Hatfield case.
Meanwhile another case involving a Mr Fidler and the ‘castle' he built behind a wall of straw bales in Surrey is awaiting hearing in the Court of Appeal. It has been stayed pending the decision of the Supreme Court in the Welwyn-Hatfield case, but might now go the same way.

As was to be expected, the government has sought to tackle this issue in the Localism Bill, which contains a provision that will prevent immunity from enforcement being obtained in future where development has been concealed. Unfortunately, the definition of ‘concealment' in the Bill has been so widely drawn that a development might be deemed to have been concealed just because the local planning authority has failed to notice it, even though the developer did nothing to hide it.

Property lawyers are very worried about this provision because of the uncertainty it could cause, and the Supreme Court in giving judgment in the Welwyn-Hatfield case suggested that the new clause is unnecessary, as the existing law is adequate to deal with such situations. It remains to be seen whether the government may be persuaded to drop this clause from the Bill.

Development for economic growth

Starting with the Budget Statement in March, there has been a series of announcements which flag up a significant change in government policy in relation to town and country planning. The government has clearly become concerned at the slow economic recovery from the recent recession and sees property development as one means of promoting economic growth. Much of the detail still has to be worked out, but we should soon see the various means by which the government hopes to promote a more development-friendly planning regime.

As a number of commentators have pointed out, this significant change in government policy is hardly consistent with the concept of ‘localism' which the coalition had been vigorously promoting since last year's general election. It remains to be seen how the government's stated intention of allowing more local control over town and country planning can be reconciled with the new government-led policy to promote development in the interests of economic growth.


This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date this article was published.

Martin Goodall is a specialist planning lawyer with more than 30 years’ continuous experience in this area of the law. He is a member of the Law Society’s Planning Panel and a Legal Associate of the Royal Town Planning Institute. He can be contacted at martin.goodall@keystonelaw.co.uk


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