Unpickling costly planning obligations

It is suggested that some two thirds of approved building projects in the last five years have either been dumped or stalled as a result of planning obligation costs making development proposals uneconomic in the wake of the credit crunch and subsequent recession.

The Secretary of State for Communities and Local Government, Eric Pickles, is therefore sending ‘troubleshooters’ into 13 local planning authorities to see if re-opening and re-negotiating section 106 planning obligation deals could provide a means of getting some projects back on track.
Coupled with this, the Coalition has announced a consultation exercise involving amendments to the Town and Country Planning (Modification and Discharge of Planning Obligations) Regulations 1992 SI 1992/2832.

The proposal will allow planning obligations entered into prior to 6th April 2010 to be re-negotiated in order to unlock development projects which were negotiated in more buoyant economic conditions but which are currently not economically viable.

Section 106 of the Town Country Planning Act 1990 (as amended) allows local planning authorities, usually before granting planning permission, to enter into planning obligations with developers. Those obligations can be voluntarily renegotiated at any time but, under the terms of the Regulations and absent any agreement, can be subject to a formal application process to reconsider the terms when it is five years old. Appeal provisions apply where such an application has been refused.

It is anticipated that the new regime will operate to allow planning obligations entered into on or before the relevant date to be re-negotiated. This provision removes the five-year restriction in the current Regulations from those planning obligations but those more recent planning obligations entered into after that date will not be able to benefit from this change. They must either be re-negotiated by agreement or wait until the expiration of the five-year period and then go through the existing formal modification and discharge procedure.

Developers looking to rely on the revised provisions, if and when enacted, will still need to ensure that the substantive legal test is met and there will, according to the consultation document, need to be strong justification for any change(s) sought. The modified obligation must still be acceptable in that it must still be necessary to make the development acceptable in planning terms.

Note however that local planning authorities cannot be forced to re-negotiate planning obligations. They would be expected to act reasonably and to consider and determine such an application applying proper planning considerations. But they might refuse to do so or they might conclude that there was still clear justification for the obligation to remain unmodified. This would engage the appeal provisions and could also, where the relevant grounds arose, permit an application for judicial review. Details of the consultation exercise can be found here. The consultation period runs until 8th October 2012. 

If you require advice on the specifics of any particular planning obligation or development proposal please do not hesitate to contact me at my day job on whose website this post also appears here.

“Have you seen what they are doing? Do I not like that!”

Sometimes you will come across development of which you disapprove.

This may be because your neighbour has spoken with you in advance of their submitting an application for planning permission. Often it is because your local planning authority (LPA) has notified you as a neighbour potentially affected by it. Applications are also posted on LPA’s websites (where you can usually view all of the application documents), deposited in the LPA’s offices or in local libraries, or publicised in local newspapers.

So what can you do about it?

You are entitled to object to any planning application, whether or not you have been notified of it. The way to object about a planning application is to write to the LPA’s planning department. This can be done by post or electronically by e-mail or using the comments facility on the website. Follow the instructions for doing so and always use the LPA’s reference or application number and make sure that you send it to the correct address. Your objection should be submitted within the required timeframe and in any event before it is determined – the earlier the better in my experience.

While it is obviously helpful to have a number of objectors, avoid the temptation of organising a petition or producing a standard template objection letter. Try to confine yourself to planning matters because LPAs are prevented from taking account of ‘immaterial considerations’ and steer well clear of anything that is libellous, racist or otherwise offensive. Concentrate on what will adversely affect you or the neighbourhood e.g. residential amenity, visual impact, effect on character, noise and disturbance, overlooking and loss of privacy. Specific designations and heritage considerations such as Green Belt, Conservation Area or Listed Building issues, Areas of Outstanding Natural Beauty or Sites of Special Scientific Interest and Tree Preservation Order protected trees all give rise to additional considerations which need to be considered in the determination process and which can provide rich grounds for objection. The same applies to issues associated with protected species. Concerns about highway safety may also be raised, but these are sometimes difficult to sustain without specialist evidence or the endorsement of the local highway authority which may or may not also be the LPA.

The LPA will consider your objection when determining the application. This determination is required to be in accordance with “the Development Plan”, unless ‘material planning considerations’ indicate otherwise. If you think that the proposal is in breach of the relevant policies in the Development Plan then include this in your objection.

Most applications are determined by the planning officer under delegated powers unless there is either a requirement that they be determined by the Planning Committee or there is a mechanism for referring it to the Committee where certain circumstances apply i.e. there are objections or a Member requests it.

If the matter does go before the Planning Committee then you might also want to write to all of the Members of the Committee setting out your objecting directly. You might also want to attend the Committee and, if your LPA permits it, address the Committee orally.

If planning permission is granted and you are unhappy about the way in which the process was conducted then you may apply to the High Court by way of an application for judicial review for the permission to be quashed. The High Court will only deal with the legality of the process and will not substitute its own view of the merits of the proposal. In any event there are strict time requirements for such applications; there is a two stage process to undergo in that the Court must first be satisfied on the papers that there is at least an arguable case that there was an error of law which would justify a quashing order being made; and never forget that it is an expensive process.

If on the otherhand the application is refused by the LPA and the applicant exercises his/her right of appeal the LPA should inform you of this. In circumstances where the appeal is dealt with by full written representations, hearing or public inquiry you will have the right to make further written representations in addition to anything you may have written at the application stage. You will also have the right to attend any hearing or public inquiry. There is also provision for a statutory challenge to the Inspector’s decision but this again relates only to errors of law and not the merits of the proposal.  Strict time limits apply.

The danger in both judicial review and statutory challenges is that the Court has discretion whether or not to quash the decision made, even if satisfied that there was a legal error in the decision or in the way in which it was reached. If the Court feels that in the end the same decision would be reached again, it may very well refuse to make a quashing order and you are left with nothing more than a ‘pyrrhic’ victory.

If you require advice on the specifics of any development proposal to which you object please do not hesitate to contact me at my day job.

Planning – your rights and obligations – ‘simples’.

In certain cases your building work can be carried out without planning permission. This is either because it does not fall within the statutory definition of ‘development’ or, if it does; it has the benefit of what are called ‘permitted development rights’.

You will need to check with your planning advisor or the relevant local planning authority (LPA) to see if your proposed building work requires planning permission. If you have to obtain planning permission, then you are not only entitled to have pre-application discussions with the planning officer but you are also entitled to receive guidance from him/her on the application process.

Once you have submitted an application for planning permission you are entitled to a full and impartial determination of your application (with reasons) within eight weeks. If your application falls into the ‘major application’ category then the time period is 13 weeks. This determination may be by the Planning Committee (to which you have the right to attend and may also be able to address) but very often it is by the planning officer acting under delegated authority.

If your application is not determined within the relevant period; is refused; or is granted subject to unacceptable conditions then, you have a right to appeal to the Secretary of State for Communities and Local Government. That appeal may be determined by an Inspector appointed by the Secretary of State in one of three ways namely: written representations (i.e. on the papers); informal hearing; or by way of a formal public inquiry with witnesses being subject to cross-examination. The Planning Inspectorate will determine the method of determination by reference to its published criteria, although you can make representations in respect thereof and challenge in the High Court, by way of judicial review. If your appeal falls within the 'householder' application category it is determined by way of an expidited written representations procedure. 

You need to establish whether planning permission is required for any proposed building work before starting the work. You should also make enquiries as to whether any other approvals are required e.g. building regulation approval, tree preservation order consents, conservation area consents or listed building consents. This is particularly important given the criminal sanctions that may apply in default.

You must comply with all of the requirements of the law and you are under a duty to contact your LPA if you have a planning query. You should not attempt to conceal any development from the LPA as this may have potentially damaging consequences not least of which if and when you come to sell your property on.

If you do have to submit an application for planning permission then you should do so properly and completely, supporting all of your statements with all of the relevant documents. If you don’t do so and don’t comply with both the national and any local information requirements then your application may not be validated and this may lead to delay or even rejection.

Obviously, you will have to pay the necessary application fees (if any) for your application.

Finally, if you are granted planning permission, you must start work within the relevant time provided for in the conditions and make sure that you comply with all of the other requirements set out in the decision notice. 

If you require advice on the specifics of your own development proposal please do not hesitate to contact me at my day job.