PlanningBlog – Brodies LLP

The Court of Session has rejected a judicial review challenge to South Lanarkshire’s heroic decision to approve the controversial Dovesdale Farm energy from waste plant (see blogs here and here). The application had received over 20,000 objections from the public, more than the entire population of neighbouring Larkhall.

 The challenge hinged on three allegations: first, that the committee had been misled by a report that indicated the development “did not fully accord” with the development plan; second, that it was irrational to grant an application that was significantly contrary to the development plan, without balancing material considerations; and third, that the planning authority had an interest in the development since it was likely to use it for waste disposal – and therefore it should have notified the significant development plan departure to Scottish Ministers under the Scottish Government’s notification rules.

Not surprisingly, the Court rejected the third allegation. Dovesdale is a speculative application. It is possible it will be used by the successful bidder in South Lanarkshire’s ongoing waste management tender – but that doesn’t add up to an interest on the part of the planning authority.

As regards the first, the report to the planning committee had to be read as a whole, and in fact it did acknowledge that the application represented a departure from the development plan, but set out a number of points the officer considered balancing factors. The committee was not misled.

And as for the second issue, the alleged irrationality of the decision, public authorities have to be very irrational indeed to meet the legal test for irrationality. Many people might have regarded the grant of permission as wrong, but that doesn’t make it unlawful.

This is all well-established law, and I suspect the person who brought the challenge was well warned by his legal counsel that the chance of success was low. So why try? People tend to be motivated to take a judicial review by how much they disapprove of the planning decision, rather than the inherent strength of their case. And even where the legal case is weak, the delay caused to the project might mean some other obstacle to it turns up. This is the third court challenge to a Scottish EfW permission in less than two years.

Crime is an occasional issue for planning, with prosecution as a sanction for failure to comply with the various types of enforcement action.

Attending a seminar by Brodies’ Business and General Crime team was a sobering experience. They highlighted the personal and business consequences of the criminal cases they’ve been dealing with, for the individual, their family and their employers, whether it’s business crime, a road traffic incident, or a domestic dispute.

Contrary to what happens in TV dramas, there is still a right to silence in Scots law. So the advice is – say nothing and get a good lawyer.

There’s a reminder in a pair of recent enforcement appeal decisions (here and here) that there’s no time limit on listed building control enforcement. The A-listed Dome restaurant on George Street, Edinburgh, has a number of awnings , parasols and canopies around it with varying degrees of fixture to the buildings. Since these were unauthorised, the Council served both planning and listed building enforcement notices. The Dome was able to show that any development was more than four years old. That dealt with the planning enforcement notice. However, the age of the alteration didn’t matter for the purposes of the listed building enforcement notice, and the notice was upheld.

All the same, it’s a bit surprising that the Council took action regarding development that’s been around for such a long time. It’s not the first time the Dome’s been in trouble though, and Edinburgh has a fearsome team of enforcement officers. Last year they served over a third of all enforcement notices in Scotland (see the Scottish Planning Statistics 2010/11) and, I understand, more than half of all listed building enforcement notices.

You have been warned.

A bit of year-end stocktaking leads me to look at the interesting stats you can pull off the DPEA’s appeals website.

In the last year (29 December 2010 to 28 December 2011), there were 276 planning appeals decided by DPEA reporters. This is down from 457 the previous year (to 28 December 2010). This 40% fall may to some extent reflect the introduction of local review bodies, but is probably much more a reflection of developers being less willing presently to take the risk of an appeal.

Neil in commenting on the DPEA’s annual report has noted that there has been a very high rate of successful appeals in the last financial year, probably reflecting the caution of appellants in pursuing only the strongest cases.

However, another statistic points in exactly the opposite direction about the care that appellants have taken in appeals: 56 (i.e. just over 20%) of all planning permission appeals were refused on the basis that the Scottish Ministers had no remit to determine them. This is up from the previous year (55 cases refused for no remit out of 457, i.e. 12%).

The great majority of these no-remit refusals have one of two reasons: first, the appeal was out of time, and second, there was no appeal remedy to the Scottish Ministers – an application should have been made to the Local Review Body instead. The latter is by my reckoning the more common reason. Plainly, one effect of the new planning system is to make failure of a case on a technicality more likely, and the risk is borne by developers. The fact the problem is getting worse underlines the need for professional advice – but the high level of technical failure of appeals suggests a problem that is systemic and the government should address as such.

Yet another deemed-refusal appeal refused on technical grounds as being out of time demonstrates why the current rules for deemed-refusal appeals and reviews are far too complicated. The applicant bears all the risk of any error, which can seem very unfair. This is a subject we’ve touched on before and we’ve produced a table setting out what the time limits are. In brief, the rules you need to remember are as follows:

• you can’t extend the period for determination of an application for a local development that is delegated to an officer for determination;
• to be valid, an agreement to extend the period for determination must be made within the period for determination of the application (i.e. the first two or four months) or subsequently within the period so extended;
• you have three months to make a deemed refusal appeal (or application for review) from the end of the determination period;
• if you don’t use your right to a deemed refusal appeal, you lose it;
• the planning authority still has a duty to determine your application (but you don’t have much leverage over them).

The error in this latest case was that the appellant had failed to agree an extension of the period for determination of the planning application in writing before the period had ended but only did so in retrospect. We previously reported a case where the planning authority and appellant were content to extend, but failed to record their agreement in writing. And we’ve mentioned the problem that you can’t always tell whether an application is delegated or not, and therefore whether you can preserve your right to a deemed refusal appeal by agreeing an extension with the planning authority.

But what reason is there for having such a strict time limit and complex set of rules on deemed refusal appeals or reviews? Why shouldn’t the applicant be able to make a deemed refusal appeal at any time before determination of an application?

A key message has shone through to me after attending a number of recent events: developers, communities and politicians want the planning service to be more confident so that it can provide more certainty and predictability on planning decisions.  All well and good. But how do we do this when the profession has taken a bit of a battering over the last few years, and is suffering from a serious bout of under-confidence?

Well, we need to get better at articulating our role, demonstrating to others the good things that planning does and quantifying the benefits that it brings.  This may mean that planners need to be clearer about what’s a ‘yes’, what’s a ‘no’ and what needs further discussion, and that planners become bolder and take risks as part of providing vision for a place.  

It relies on Scottish Government continuing to promote planning as a mechanism for achieving sustainable economic growth through providing predictability through its policy, guidance, advice and good practice and through supporting planners to be able to develop their skills and understanding of evolving planning issues.  

Planning authorities need to ensure that they put in place a culture which breeds confidence, which allows staff to take professional decisions based upon their expertise and training, and, support newer planners to have the confidence to take decisions.

Politicians need to recognise the important role that planning plays and appreciate the longer term vision and strategic overview that planners bring.

Developers, investors and communities should try to work with planning authorities collaboratively, proactively and constructively to get the vision right.

And bodies, such as RTPI, have to promote planning as a ‘can do’ profession which is a tool in the box in helping ensure that the right thing is built in the right place at the right time.

I’ll certainly strive to do my bit….

Craig McLaren

(Craig is National Director of RTPI Scotland)

Bethlehem City Council’s enforcement officer had just been wondering what decoration he was going to put on the top of the office Winterval tree when he got the call. Winterval was a frustrating time: there was never much peace and goodwill about in this festival no one could quite see the point of. So instead of enjoying the time off, neighbours fell out with neighbours and complained to the Council about minor infractions of planning control.

This latest was unauthorised change of use of a livestock barn adjacent to an inn to living accommodation for the inn. Nothing earth-shaking he thought, but nonetheless, he’d better take a look and calm things down before the Council’s Winterval break. He had a chat with the inn owner, who assured him that there was no material change of use - the use of the barn as occasional overflow accommodation for the inn was ancillary to its main use for overwintering livestock, and in any case it formed part of a single planning unit with the inn. The enforcement officer thought a mixed class 7 and agricultural use was somewhat unusual. On the landlord’s account although there was no formal grant of permission, it was well established. Nonetheless, the officer thought he should take a look for himself.

On his way over, he saw shepherds driving sheep to the barn, which seemed to indicate it was in concurrent use for livestock. He wondered whether he should let environmental health know. Just as he was about to go in, he was almost run down by three characters on camels dressed as if they were going to a fancy-dress party. More people seemed to be on their way. Was he dealing with an unauthorised party venue (sui generis use) ? As he turned towards the barn, this initial thought was confirmed as a bright light flashed over the peak of the roof – they seemed to have some star arrangement rigged up to attract punters. Given its brightness, he noted he really should mention the possibility of light pollution statutory nuisance to environmental health.

However, on entering the barn he found although it was crowded with both people and livestock, it was  a quiet gathering – attention seemed to be centred on a needy looking couple and their newborn. Turning to one of the  fancy dress characters, he asked for an explanation. The man in mufti muttered something about god and king. The king bit he didn’t believe – and this could hardly be said to be a palace use (sui generis). Plainly some cult was intent on turning this building into a place of worship (class 10).

Still, he thought, they seem a peaceful lot, so what’s the actual impact on amenity? Taking enforcement action is a matter of discretion for the Council.

And after all, it was Winterval.

So he turned a blind eye also to the rooftop gathering of amateur aeronautic musicians and suppressed the thought about whether a CAA licence was needed. And as, in a lighter mood, he set off back to the office, they proclaimed:  

“Merry Winterval and a Jolly Solstice to all planners and peace and goodwill to clients and consultants everywhere.”

A dispute over an affordable housing contribution has ended with complete success for a Fife developer. At appeal, the owner of the Pickletillum Inn, a decaying vacant property at Drumoig near St Andrews persuaded the reporter it was appropriate to grant permission for its replacement with five houses. However, five is the number of housing units that triggers Fife’s affordable housing policy. The reporter issued a minded-to-grant letter subject to conclusion of a planning agreement to secure the contribution. The Council and developer however could not reach agreement. The developer then returned to the reporter to say there would be no agreement and that she would apply for four houses (i.e. below the affordable housing trigger) if the application was turned down. The reporter decided to grant permission despite the lack of agreement.

It’s rare to see a developer calling the Council’s bluff in this way, and may perhaps become still rarer:  

• Despite the developer now having the option of giving a unilateral undertaking, she did not take that option. She claimed the contribution would make the fifth house unviable. Since she had the option of giving a unilateral undertaking, she might have sought to persuade the reporter by offering an undertaking securing a lower contribution as a compromise.
• The reporter was still willing to issue a minded-to-grant letter, and allow the Council and developer to come to an agreement. In England, inspectors have been insisting that they be given sight of unilateral obligations as part of the appeal documents.

The reporter considered that, although granting permission without a contribution would breach the council’s policies on affordable housing, compliance with other relevant development plan policies and the removal of this eyesore amounted to sufficient positive material considerations to justify the departure from policy. Given the option now available of applying to modify or discharge section 75 planning obligations, I wonder how often Fife will find this case cited as a precedent in such applications.

Most people will already have seen Jim Mackinnon’s advice on occupancy conditions. It relates to applications for new housing in the countryside where the question of need must be weighed against other impacts such as road safety, landscape quality or natural heritage, and his advice is that where need is demonstrated, no occupancy restriction is required.

Although the advice doesn’t directly say so, it would plainly support an application to remove existing occupancy restrictions.

Since this is framed as advice, you’d think that the government’s position had not changed. However, Circular 4/1998 on conditions remains in effect, and it suggests that occupancy restrictions might be appropriate in these circumstances (see para 100). If there has been a change of policy, you’d think the circular would be re-issued with the relevant changes.

One reason for the use of occupancy conditions is precisely because the need justification can overcome other objections:  a farmhouse is no doubt needed on a farm, but what happens if the farmhouse passes out of farm use while the need for it subsists? In the light of the advice, it now seems perfectly possible for a farmer to justify a new farm house on the basis that he’s signed a contract for the sale of the old one.

Of course, the advice is qualified: “In areas where, due to commuter or other pressure, there is a danger of suburbanisation of the countryside or an unsustainable growth in long distance car-based commuting, there is a sound case for a more restrictive approach”. This seems to be a qualification that could remove a large part of Scotland from the ambit of the advice including possibly all greener parts of the wider central belt from Perth to Peebles. No further definition is offered. 

It seems to me that from now on any planning authority that does want to impose occupancy conditions in certain areas must define those areas and justify the restrictions through the development plan process. Until those policies are in place, we’ll  no doubt see a definition of areas where occupancy restrictions are justified emerging appeal by appeal.  

5pm today is the deadline for voting. Great to see 6 strong contestants, including Monica Lennon and Nikola Miller, both based in Scotland. If you are an RTPI member, get your vote in (information and voting).