PlanningBlog – Brodies LLP

“How late is too late?” is a question of interest to objectors who might want to challenge a planning decision by judicial review, and to developers considering whether they can start works. Neil and property colleague Alasdair Fleming have being doing breakfast seminars on this topic, following the latest Court of Session decision, which indicated that 16 months was not too late in the specific circumstances of that case. 

In the case of R(U & Partners (East Anglia) Ltd) v The Broads Authority [2011] EWHC 1824 (Admin), the English Environment Agency had already expended £130,000 on flood prevention works on the strength of planning permission it had been granted by the Broads Authority when the planning permission was quashed by the High Court at judicial review.

In England, a judicial review challenge must be brought promptly and no later than three months from the date on which the grounds arose. The claimant had not acted promptly in bringing the judicial review. In fact he seems to have sat on his thumbs for two months after the grant of permission before indicating he would challenge the grant, even though he was aware the Environment Agency had started work.

However (as last year I speculated it might), the Court decided that, for cases in which an EC Directive provided a right of challenge, a limitation period whose duration is placed at the discretion of the court is not predictable in its effect, and so does not ensure effective transposition of the Directive.  The Court therefore decided that the requirement for promptness must be set aside, and the three month time limit would apply.

Bear in mind that this ruling applies to any matter where there has been breach of the Directives on strategic environmental assessment, environmental impact assessment or appropriate assessment of European conservation sites.

In Scotland, there is no longstop time limit equivalent to the three-month rule in England. An objector must bring a challenge without “mora, taciturnity and acquiescence”, i.e. delay, a failure to speak out or assert rights, and silence or passive assent to what has taken place. If the English rule on promptness must be disapplied, that throws the law in Scotland into some uncertainty. It seems to me that legislation is needed to sort this out. I wonder if the Hunterston case might have been decided differently if the Court had considered U & Partners.

But how much advantage did the challenger in U & Partners actually gain?  The Environment Agency would have to have its planning application determined again, though Mr Justice Collins indicated that the planning committee could take into account the expenditure already made in works carried out in reliance on the quashed permission.

One further crumb of comfort: Mr Justice Collins was plainly unhappy with the EC law position. He emphasised it did not apply beyond cases involving EC law.

It is a quirk of the local review body (LRB) system that, where it is considering a deemed refusal application (i.e. an application the appointed officer failed to determine with the allotted time), and fails to determine it within two months, the LRB is deemed automatically to have refused the application, and the applicant may appeal to a reporter (something we’ve been calling a “double deemed refusal”).

Such cases are rare, though a recent Fife double deemed refusal case  for a wind turbine gives an insight into the way the LRB operates in that council. The council simply told the applicant that: “The Council’s Planning Review Body was unable to determine the application within the two month time period mainly due to the lack of scheduled meetings during the summer recess.”

There is no doubt that it’s difficult for a LRB to deal with a case in the two months allotted, and particularly when the proposed development is a turbine - but you’d think it would at least be able to get three members together even in the summer months. Developers with an eye to tactics take note. If you want an application before a reporter, get it before the LRB in the holidays!

Sadly, none of this helped the turbine though, which was refused.

But this time it’s in Wales. The Welsh Government has set up an independent review with a view to producing a new planning bill.

The UK is fast becoming a laboratory for different planning systems. If you have any ideas about objectives for the planning system and effective delivery of planning decisions, you have until 3 February 2012 to tell the Welsh Government.

There are more than one or two building sites at stand-still around the country. This can mean that temporary measures such as skips, containers and portable site facilities can stay longer than was expected. In some cases this is likely to lead to complaints from neighbours, which find their way to a planning enforcement officer.

A recent enforcement notice appeal decision saw a planning authority take action for removal of containers and portacabins from a building site. The notice narrated that the breach was “without planning permission the owner of the land has maintained a portacabin and two containers at the site”.

There is a permitted development right to provide on land buildings, moveable structures, works and machinery in connection with operational development on that land or adjoining land. It will no doubt alarm owners of mothballed sites that the reporter considered the temporary (albeit very extended) lull in building activity meant that this permitted development right did not apply.

The terms of the enforcement notice as upheld are odd: putting items such as skips and containers on land is never going to amount to operational development. They are by their nature moveable, so there’s never going to be the degree of size, permanence or fixture to the land that would mean planning permission was required (for the principles see the Skerrits of Nottingham case). Portacabins lie closer to the boundary of what amounts to operational development – but if they are easily removed and don’t have utilities plumbed in, they also wouldn’t be operational development.

However, the notice appears to treat “maintenance of a portacabin and two containers” as a use of land. I’d argue that maintaining a skip, container or portacabin on land is not normally a use of that land. My precedent is R(Lee) v First Secretary, where the court determined that a barn, in which the appellant lived with his family in two caravans, had a residential use.  If a skip is being used to store waste, then I’d have thought waste storage is the land use – the skip is just the means.

What’s more planning authorities may get themselves into difficulties if they don’t focus on the actual land use: they are deemed to grant permission for a breach of planning control against which they could have taken enforcement action but did not. If the land use is storage of building waste or supplies, what’s to stop a skip or container returning lawfully?

But analysis in terms of land use just doesn’t seem appropriate for a mothballed building site.  After all, planning permission remains in place and skips and material can lawfully return as soon as there is any revival of the operational development. In the case I’ve mentioned, the reporter pragmatically allowed one container to be retained.

Another way to approach enforcement for mothballed sites would be to serve a completion notice. This would focus the issue between the planning authority and builder on when and whether the site was going to be completed and the temporary stuctures cleared, and set a realistic deadline for completion, which is what the neighbours are really likely to be interested in.

Sometimes you’ve got to do what you say you’re going to do, at least if you’re a planning inspector. Cornwall Waste Forum St Denis Branch v Secretary of State for Communities and Local Government (2011) is one of those occasions. The case concerned an appeal against refusal of permission for a waste incinerator which was sited close to two European special areas of conservation (SACs).

Objectors claimed that appropriate assessment (AA) under the Habitats Regulations was required of the impact of the proposed development’s emissions on the SACs. But there were two “competent authorities” for the purpose of AA – the Secretary of State (determining the planning appeal) and the Environment Agency (determining the environmental licence application). Which of them was to determine whether AA was necessary? For such circumstances, the Habitats Regulations helpfully provide that  “nothing … requires a competent authority to assess any implications of a plan or project which would be more appropriately assessed … by another competent authority”.

The planning inquiry inspector allowed objectors to make submissions about the need for AA on the basis that the Secretary of State would decide whether it was required. However, between the conclusion of the inquiry and the Secretary of State issuing a decision, the Environment Agency issued the licence.

In granting planning permission for the incinerator, the Secretary of State accepted the inspector’s view that the Environment Agency was the appropriate competent authority to carry out AA, and in issuing the licence had determined no AA was needed.

The objectors were understandably upset, not least since the period for challenging the Environment Agency’s grant of the licence had expired before the Secretary of State reached a decision. The court determined that the objectors had had a legitimate expectation, on the basis of the inspector’s actions at the inquiry, that the matter of AA would be dealt with by the Secretary of State. It quashed the planning permission. The potential cost of the delay to the County’s taxpayers was said to be £200 million.

Is there any lesson for a developer? If AA had been carried out, it seems likely it would not have found any significant impact on the SACs (the view of both the Environment Agency and Natural England). It also seems the parties agreed there was information before the inspector to allow AA to be carried out. Perhaps a developer in those circumstances should be pushing for the small amount of additional work to be done.

Enjoyed chairing the recent Scottish Government workshop for local authority planners on EIA Current Practice.

The Scottish Government have put a lot of work into Strategic Environmental Assessment (SEA), and attention is now turning to the efficency and effectiveness of EIA. Keep an eye on the EIA webpage.

As well as providing an update on the new Regulations and work on identifying best practice, the workshop marked the launch of the Scottish Government review of the Planning Advice Note on EIA.

There was also an interesting presentation by IEMA on their report into EIA practice in the UK, based on a 2 year research study.

Well done to Scottish Renewables for another great Planning Conference. The overarching theme was the challenge ahead if the Government’s renewables target is to be reached.

Here’s my take on the Conference discussions:

• Politicians make most of the decisions, and they listen to people, so public engagement is vital
• Engagement needs to avoid the inherent assumption that the renewables industry are right
• Inward investors need to be encouraged – they want certainty and transparency
• The technical details of wind developments mean these are the most difficult applications for planning officers to deal with  – rather than each council having to struggle separately, centres of excellence should be developed
• Small wind developments are particularly problematic, and planning officers need assistance to be able to take a proportionate approach to information gathering. The forthcoming review of permitted development rights for non householder development might be an opportunity to give farmers more PD rights for wind turbines? More radically, could there be a process of self-certification for technical aspects such as noise – for small developments within specified thresholds? 
• The environmental assessment process and language needs to change
• Culture is changing, but there is still plenty scope to move from adversarial to collaborative approaches (and it was disappointing how few local authority planners attended the Conference, despite it being organised in association with the RTPI)
• If we are to avoid planning by appeal, the Scottish Government need to take a more active role in scrutinising local authority supplementary guidance, which too often do not comply with national policy
• What can the forthcoming NPF3 do?  

ECoW (Ecological Clerk of Works) is a fairly new addition to the library of planning acronyms. Larger wind farm projects often have an ECoW. I’ve had very positive feedback from a wind farm developer about the contribution of the ECoW.

And there’s now AEECoW, which is a body developed to raise professional standards amongst those providing Env/ECoW services whilst promoting Env/ECoWs as valuable members of site development teams. There’s MRTPI and MRICS – could there be MAEECoW?

After the reforms to planning appeals came into effect, the DPEA turned its attention to other environmental appeals and inquiries that it handles. It has produced a number of codes of practice for core path inquiries, inquiries into Electricity Act consents and, most recently, environmental consent and enforcement appeals.

These codes have sought to bring rules for such inquiries and appeals into line with the new rules for planning appeals and development planning: there is an initial round of written submissions, on the basis of which the reporter then determines whether any further procedure is required by way of further written submissions, an informal hearing or a formal inquiry on topics he or she identifies. The reporter’s power over the process is increased, and that of the parties to make their case as they see fit greatly reduced.

There is a lot to be said in favour of the new planning appeals rules – they’ve certainly been instrumental in accelerating decisions in many (but not all) cases. So is there any problem with the DPEA’s approach of bringing other appeals and inquiries into line?

Not everyone is completely happy about the new planning appeals and inquiry rules. There are concerns about the degree to which they allow parties (particularly third parties) to put their case effectively. But at least the planning appeals rules were put to Parliament. The DPEA’s codes of practice are effectively informal legislation filling the same role as the planning appeals rules, but not put to Parliament, or even to public consultation. In some cases the codes appear to run contrary to the existing law.

The existing legal rules for handling environmental appeals (set out in schedule 20 of the Environment Act 1995) are not detailed, but the law does provide that each party must be given the opportunity to appear before and be heard by the reporter. It’s difficult to see how this right is truly given effect if it is a matter for the reporter to decide if they should be heard, and if so, upon what topic.

Similarly, the DPEA’s codes for core path inquiries and Electricity Act consents to be dealt with to a large extent by written submissions. It is hard to reconcile this with the provisions in the law requiring notice to be given to parties of the place and time of the inquiry’s start.

There has not been a challenge yet to the DPEA’s codes of practice, but that doesn’t rule out a challenge in future. A successful challenge would throw any ongoing appeal or inquiry carried on under a code of practice into doubt.

If planning and environmental appeal and inquiry rules are all to be brought into line, why shouldn’t it be done in a single statute that is subject to Parliamentary scrutiny?

The planning rules on demolition have always been complicated, but it feels like it’s getting worse.

Following a court decision that demolition could be EIA development, the Scottish Government withdrew the Direction which had stated that demolition of certain types of buildings – broadly, everything except houses and flats – was not “development” and therefore did not require planning permission. Circular 4/2011 explains.

Following the withdrawal of the Direction, demolition is included in the definition of “development”, so it requires planning permission. However, Class 70 of the Permitted Development Order grants permitted development rights for most forms of demolition, although in some instances an application has to be submitted to the planning authority for prior approval of the method of demolition and any proposed restoration of the site.

From 21 November, the prior approval process will only apply to dwellinghouses, flats or buildings with mutual walls or a main wall adjoining a dwellinghouse or flat, where the demolition is not necessary to implement a planning permission.

This tortious route brings us back more or less to where we started. Demolition of a non-residential property does not require express planning permission (it now has deemed planning permission under class 70, whereas previously the Direction said that it wasn’t “development”, and class 70 has been amended to exclude the need for prior approval). The only difference is that there must be a planning application if the demolition is EIA development.

Class 70 does not grant PD rights for demolition of part of a building, but the Direction didn’t apply to partial demolition either, so the withdrawal of the Direction doesn’t affect partial demolitions.

The good news is that none of this matters if the demolition is part of a redevelopment scheme, provided the demolition is included in the planning permission for the redevelopment.

Can I make a personal plea to the Scottish Government? We were taught at University that ignorance of the law is no excuse. Is it really appropriate for these amendments to be contained in an Order which doesn’t mention demolition in the title? Any why have these amendments to class 70 received so little publicity, despite being in the same Order as the new householder permitted development rights, which have been well publicised. And in the computer age, why does the Order not contain the updated text of class 70? It follows the very user-unfriendly approach of narrating changes, which can only be understood when read in conjunction with the existing class 70.