Mind the Gaps: mixed messages, conflicts and trip hazards within the planning system.
As much as I love all things planning law (and I am real geek about my chosen area of practice... you may have noticed), even I have to admit that it is not the easiest of systems at times. In fact, from the outside, it can appear to be a tangle of contradictions, inconsistencies and mixed messages.
In large part, this is down to the fact that planning is not actually a single system, but rather series of separate overlapping ones. The connections between which can be tangential at best. Even a relatively modest planning application may require the applicant to navigate multiple sets of legislation, which all differ from each other in small, but important, ways; as well as local and national policy requirements, which also conflict on some level.
On that basis, it is not surprising that there are a remarkably large number of trip hazards within the planning system as it stands, not least where two sets of legislation overlap - or policy and practice has moved on before the accompanying legal structures have had a chance to catch up!
By way of a few examples:
Planning and CIL
The Community Infrastructure Regulations are notorious for not taking into account the way that planning and development operates in 'real life'. A few of the less well known manifestations of the problems with letting the treasury draft planning law are as follows:
- It is now perfectly possible for a developer to end up paying 100% of the CIL liability on a development that he is not lawfully permitted to build out. This was highlighted by Planning Inspectorate decision in February*, which confirmed that the payment of CIL was triggered by the carrying out of a material operation on site - regardless of whether the pre-commencement conditions had been discharged. In short, CIL will apply whether there has been a lawful commencement or not; regardless of the fact that the consent may have expired in planning terms and could no longer be lawfully completed.
- Planning policy and practice has moved on somewhat since the CIL Reliefs contained in the regulations were drafted, particularly in relation to affordable housing tenures. As such, some increasingly common forms of affordable housing provision (such as products for discounted sale) are not covered by mandatory affordable housing relief. There is a relief available for them, but it is discretionary, and a large number of councils have not, as yet, adopted it. As such, it is perfectly possible for a developer to end up being taxed at market rates on a housing tenure which has to be sold at a deep discount.
- The most well known 'discount' from CIL (i.e. floor space which has been in 'lawful use' for at least six months out of the previous three years) is calculated backwards i.e. you start counting back from the date on which the planning permission first permits development. The date on which a "permission first permits development" also moves around depending on the type of consent you have - which makes it extremely difficult to budget for your CIL liabilities in advance of making your planning application!
EIA and HRA Regulations
There has been a lot of coverage of the People Over Wind ruling, which I will not go into in detail in this post (it is quite long enough already); but in addition to the other consequences of the case, it also widens the differences between the type of assessment requirement under the EIA Regulations (which may well include an assessment of the impact of protected species and habitats) and the Habitats Regulations themselves.
Now larger schemes may well find themselves having to engage with a screening report under the EIA regulations, which can take into account the impact of mitigation measures as part of the screening; and a separate assessment under the Habitats Regulations, which can't. This is despite the fact that the baseline information required about the protected habitats in both screening exercises is practically identical.
Assets of Community Value, Village Greens and Public Rights of Way
Technically none of these things are 'planning' but they are definitely planning-tangential. We run into them far more often than we may care to and the types of public or community use that needs to be considered in each case varies. In particular, a recent Court of Appeal decision** highlighted that, unlike public rights of way or village greens, the fact that use of a property by the public had been unlawful or contentious will not necessarily prevent it being registering an asset of community value.
Planning vs Planning
Most of the more bizarre contradictions, however, fall within the planning regime itself. A few of my favourite inherent inconsistencies are set out below.
- There is an immunity period for works done in breach of planning control, but not for works done in breach of/ without listed building consent - so you can obtain a certificate of lawfulness for a property whilst simultaneously being prosecuted for the same works under a different regulatory regime, by a slightly different officer in the same Council.
- As another planning blogger pointed out last week (far more eloquently than I could - see below); you are entitled to a refund for planning permissions that are not determined within 26 weeks - but only if you have not agreed an extension of time with the local planning authority.
- The government has spent significant time and money on introducing a new form of planning consent into the UK system - planning permission in principle - which does not offer more than a standard outline planning application in terms of benefits to an applicant, and according to today's planning resource*** has attracted very little interest from the industry.
- A development comprising ten new dwellings is capable of simultaneously being classified as 'major development' under the Development Management Procedure Order and qualifying for relief from affordable housing contributions under the 'small sites exemption' contained in the 2014 Written Ministerial Statement.
I am sure that there are many more - so please do let me know if I have missed any!
*https://imbusiness.passle.net/post/102eq4p/cil-appeal-decision-failing-to-discharge-pre-commencement-conditions-will-not-av
** https://imbusiness.passle.net/post/102ex3u/court-of-appeal-unlawful-use-is-not-an-automatic-barrier-to-registering-an-asset
In our ridiculous legislative patchwork you need to look at the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2013 which amended the 2012 Regulations from 1 October 2013 so as to introduce, as Regulation 9A, the right for an applicant to have its application fee refunded “in the event that the local planning authority fail, or the Secretary of State, in relation to an application made under section 62A of the 1990 Act fails, to determine the application within 26 weeks of the date when a valid application was received by the local planning authority or the Secretary of State, as the case may be.”
Regulation 9A (2) provides that the right does not apply where “the applicant and the local planning authority, or, in the case of an application under section 62A of the 1990 Act, the Secretary of State, have agreed in writing that the application is to be determined within an extended period“, the application has been called in, is the subject of an appeal or of judicial review.
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