Tories, Residential Extensions, Article 4 Directions and Compensation

The BBC has today reported that a Tory London council is looking at ways in which it can circumvent the Coalition’s proposals to relaxed permitted development rules in respect of residential extensions.

The Coalition believes that freeing up the rules and allowing greater development without the need to go through the formalities of applying for and obtaining planning permission will reinvigorate the construction industry and help boost the economy.

The measures, as part of a wider package of proposals, were set out in a ministerial statement by Eric Pickles.  This said that “We will consult shortly on changes to increase existing permitted development rights for extensions to homes and business premises in non protected areas for a three-year period. This will mean less municipal red tape to build a conservatory and similar small-scale home improvement and free up valuable resources in local authorities”.

The consultation has not yet been published but is expected to relate to the proposal to ease rules, for a three-year period, on developments including home extensions of up to 8m - compared with the current 3-4m limit on extensions without planning permission.

Permitted Development Rights for development within the curtilage of a dwellinghouse are currently dealt with in the Schedule to the Town and Country Planning (General Permitted Development) (Amendment) (No. 2) (England) Order 2008 and it is these which the Coalition will need to amend in order to implement whatever proposal, if any, is settled on following the consultation exercise.

There were always going to be concerns that a rash of ugly extensions would cause problems for neighbourly relations in the leafy suburbs where natural Tory supporters reside and it now seems that at least one council is considering ways to circumvent the policy.

The Coalition via the DCLG has confirmed that “… if there are genuine local concerns councils can withdraw permitted development rights locally using existing powers - known as article four directions - if the exercise of those planning freedoms resulted in unacceptable impacts on their community."

The Town and Country Planning (General Permitted Development) Order 1995 ("the 1995 Order") deals with the power to make Directions restricting permitted development which is presumably what DCLG is talking about.

So far as is relevant for present purposes there is provision for either the Secretary of State or the appropriate local planning authority, if satisfied that it is expedient that development within the curtilage of a dwellinghouse should not be carried out unless permission is granted for it on an application, to give a direction the permitted development permission granted by Article 3 shall not apply to all or any development of the Part, Class or paragraph in question in an area specified in the direction; or any particular development, falling within that Part, Class or paragraph, which is specified in the direction, and the direction shall specify that it is made under this paragraph (Article 4(1) Direction).

There is also a separate provision where the appropriate local planning authority is similarly satisfied that such development should not be carried out within the whole or any part of a conservation area unless permission is granted for it on an application (Article 4(2) Direction).

There is a formal and timely process to be undertaken by local planning authorities. This may involve the giving of notice to other authorities in the area and may also involve the requirement for approval of the Secretary of State for Article 4(1) directions which may be obtained with or without modifications (see Article 5). In respect of Article 4(2) directions there are additional public notice requirements (see Article 6). Fuller details can be seen in the DCLG produced document which replaces Appendix D to Department of the Environment Circular 9/95: General Development Consolidation Order 1995. This provides updated guidance on the use of Article 4 directions and also contains information about associated compensation arrangements and provides 'model' article 4 directions.

There is no statutory appeal against the making of an Article 4 Direction but such a decision would be open to challenge by way of Judicial Review on ordinary Wednesbury unreasonableness principals.

Section 107 and Section 108 of the Town and Country Planning Act 1990 deal with the obligation on the local planning authority to pay compensation following the making of an Article 4 Direction and either (i) the subsequent refusal of permission for development formerly permitted by the 1995 Order or (ii) the grant of permission in respect thereof subject to conditions other than those imposed by the 1995 Order.

The Town and Country Planning (Compensation) (No. 3) (England) Regulations 2010 (2010 No. 2135) reduces local planning authorities’ liability to pay compensation where they make Article 4 directions. Where 12 months’ notice is given in advance of a direction taking effect there will be no liability to pay compensation. Where directions are made with immediate effect or less than 12 months’ notice, compensation will only be payable in relation to planning applications which are submitted within 12 months of the effective date of the direction and which are subsequently refused or where permission is granted subject to conditions.

But leaving aside the question of whether the Coalition would ever permit recalcitrant local planning authorities to circumvent the proposed changes to the Permitted Development regime by way of the Article 4 mechanism (particularly in circumstances where it is now on notice that that is their avowed intention), what planet do all of these people live on? The potential compensation liability, in my view, makes the whole Council ‘wheeze’ a non starter from the start. Local planning authorities cannot afford to pay out all of the compensation that would arise in the face of a concerted effort by householders to extract maximum benefit from their local authority and it is disingenuous of them to suggest otherwise. Similarly, it is disingenuous of the Coalition to suggest that the problems of the economy and the effects of the recession are not going to be solved by building residential extensions.

Since first writing this post it would now appear that in a survey commissioned by the Royal Institute of British Architects (RIBA), and reported in Planning Magazine (£), 54 per cent of respondents believed the Coalition's proposals would mean the quality of the design of their neighbourhood would get worse.

Coalition planning changes roundup

As the dust begins to settle a little on the Coalition’s various headline grabbing announcements regarding the inadequacies of the planning system it is worth stepping back a little and taking stock of just where we are in terms of the changes that are in fact proposed.

The majority of the proposals have been conveniently flagged up in a Ministerial Statement issued by CLG Secretary of State, Eric Pickles. Some of the others had been made earlier in separate announcements.  

These proposed changes will clearly alter the dynamics of the relationship between developer, local planning authority, local residents and the Planning Inspectorate.

They include:

• New legislation to allow the Planning Inspectorate to determine applications made to local planning authorities with a poor track record on speed and quality of decisions. This will need to differentiate from decisions which the applicant just doesn’t like and which should be subject to the normal appeals process.
• Increased reporting on local authority planning performance.
• Increased use of planning performance agreements.
• Speeded up planning appeals including a new fast-track system for small commercial appeals and immediate priority given to speeding up major economic and housing related appeals.
• Increased powers for Planning Inspectors to award costs on appeals where the proper planning application process has not been followed. The current rules allow for a costs award against local planning authorities in circumstances where it has acted unreasonably and that unreasonable conducted has resulted in the applicant incurring costs that it would not otherwise have done. A failure to follow the proper application process is clearly unreasonable and therefore it is difficult to see precisely what the Coalition has in mind without seeing the revised provisions and associated guidance.
• Reviewed thresholds for categories of Nationally Significant Infrastructure Projects to extend the benefits of this system to more development including significant commercial and business development and possibly also large scale housing sites. This of course is designed to remove more decision making from local planning authorities and seems completely at odds with the generally understood concept of ‘Localism’ espoused in the pre-election Open Source Planning Green Paper and the Localism Act 2011. It is certainly inconsistent with the CLG website 'About us' page which talks about creating "a free, fair and responsible Big Society by:... putting communities in charge of planning".
• Mediation for S106 renegotiations.
• Legislation to allow developers of sites which are unviable because of the number of affordable homes, to appeal to the Planning Inspectorate for variation of S106s within a three year window to reflect current economic circumstances.
• Formal applications to local planning authorities to vary unviable S106s entered into before April 2010 (see Consultation exercise).
• Rationalising local and national information requirements to be submitted as part of planning applications.
• Reviewed green belt designations to make the best use of previously developed land whilst maintaining the openness of the green belt, in line with the NPPF.
• Extension of permitted development rights for (i) flats over commercial premises (see Town and Country Planning (General Permitted Development) (Amendment0 (No 2) (England) Order 2012) and (ii) extensions to homes and business premises in non-protected areas for a three-year period. Leaving aside the very real problems that these proposals are going to create for continuing relations with neighbouring landowners there are going to be residual and continuing problems associated with land transactions and demonstrating the lawfulness of development undertaken.
• Temporary change the use of an empty shop for two years where the use would be low impact (see Consultation exercise).
• New permitted development rights to enable change of use from commercial to residential purposes, with the ability of local authorities to seek local exemptions where there could be an adverse economic impact (see earlier Consultation exercise where this particular idea had been shelved).
• Proposed changes permitting internet providers to install broadband street cabinets and associated infrastructure without prior approval from local planning authorities. This means that Broadband street cabinets can be installed in any location other than a SSSI without the need for prior approval and without any conditions being placed upon the construction or design "except in exceptional circumstances"; Broadband fibre optic cables and other Broadband infrastructure can be located under or above private land "without the bureaucratic burden of long-running negotiations"; and that overhead broadband lines can be installed in any area without the need for planning or other permission (see Consultation exercise). 
• An extension of one year to the ability to renew planning permissions (see Town and Country Planning (Development Management Procedure) (England) (Amendment No 2) Order 2012 and Planning (Listed Buildings and Conservation Areas) (Amendment) (England) Regulations 2012.

There are still a great many gaps in the proposals and, is so very often the case, the devil is in the detail. We shall therefore have to wait and see what comes forward.

It is however clear that despite the call to dispense with dither (from a government that has already been in power for the last two years) a number of the proposed changes are temporary short term measures. This begs the rather obvious question that if they are acceptable in planning terms now and the Coalition is prepared to introduce them, then why are they not acceptable for the longer term and introduced without any time restriction. That would at least demonstrate a clear unequivocal determination to address the issues identified and get rid of some of the 'dither'.

“There may be trouble ahead”

The Coalition’s avowed desire to further reform the planning system in order to drive economic growth is, in my view, misconceived and just plain wrong.

I do not believe that it will work or that it will do what it is said that it is hoped it will do. I for my part am no longer sure that economic growth is the real reason for the ‘reforms’ anyway. I see it as nothing less than another step in the process of ‘rebooting’ the planning regime to re-orientate the decision making process away from local planning authorities. Otherwise, why embark on such a risky and foolhardy venture?

But let’s look at what the Coalition appears to have in mind (remember we do not as yet have a draft bill and the inevitable secondary legislation with all of the relevant detail). 

Re-designating housing as infrastructure and directing its development in the Green Belt (whatever matching replacement provision mechanism is devised) will not secure its provision.

Leaving aside the hypocrisy of reverting to the top down ‘diktat’ approach favoured by the ‘Socialists’ and so derided by the Tories, the approach is not going to work because first, the banks, as is generally accepted, are just not lending which is a necessary pre-requisite to breaking ground and second and in any event, the residential housebuilders are already sitting on existing land banks which are not being developed. The August construction figures show that there is a further slowdown across all sectors of the market. 

But even if all of these new houses are built they will need to be built where people need and want them i.e. close to jobs and all the other necessary social infrastructure of modern living. That is not in the Green Belt. Equally importantly people will need to be able to afford to buy or rent them and that looks increasingly unlikely as we see the biting hardships of the double dip recession. 

I do not believe that further loosening of the local planning authority oversight is a good thing. Development Control at the local planning authority level can, without a doubt, be a good thing. It can secure high quality development which makes good rationale use of the scarce land resource which has the effect of increasing values for all. The alternative does not bear thinking about with local people having unwanted development forced on them at the whim of a central government in hoc to the developers. For goodness sake we don’t want to have a Spanish style free for all. Look where that led them.

The Tories raised the expectations of their natural supporters in the shires with the ‘Localism’ agenda. People were encouraged to believe that they would have a genuine say over the way in which their local area was to be developed. Along came the National Planning Policy Framework with its presumption in favour of sustainable development raising competing expectations in the development industry. These expectations mean that there are now inherent tensions in the process. With further changes in the pipeline there is undoubtedly further trouble ahead as the rural lobby girds its loins for the internecine warfare to come within the Tory party .

Tinkering with the appeals, statutory challenges and judicial review mechanisms is touted as one way of reducing the time it is said that it takes to get planning permission. But planning is a participatory process which, if it is to work and work well, requires public endorsement and underpinning. In a democracy where the rule of law applies, making it harder for the public to participate in a meaningful way is not going to make the concerns abate or the litigation (and associated delay) go away. It is, in my view, going to make it more likely given the need to comply with shortened timescales and to protect positions in the short term.

But the Tories don’t seem to see that or is that they no longer care and are working to another agenda? The recent Cabinet reshuffle suggests that the Prime Minister and the Coalition, or at least the Tory majority part of it, are equally gearing up for a fight.

Probity Issues for Members in Planning Committees

The life of a Planning Committee Member is not an easy one. It is not just about making decisions on particular applications for planning permission. It is about the whole planning process from the plan making at the start involving the development of policy with the core strategy of the development plan and supplementary planning documents through to the pre-application discussions with developers and consultation with interested parties and objectors.

But this involvement invariably raises issues about the nature and extent of Member engagement and the rules surrounding declarations of interests and issues such as bias, pre-disposition and pre-determination. Members very often have problems with the mechanics of getting involved and more importantly with understanding how to avoid the pitfalls.

Under section 30 of the Localism Act 2011 (“the Act”) there is a requirement for disclosure of pecuniary interests on taking office whereby a Member or co-opted Member of a relevant authority has 28 days from when they become a Member or co-opted Member of the authority to notify the authority’s monitoring officer of any pecuniary interests which they have at the time of notification. There are provisions dealing with re-election or re-appointment. For these purposes a pecuniary interest is a “Disclosable Pecuniary Interest” (see further below) and is either an interest of the Member, or it is an interest of the Member’s spouse or civil partner, a person with whom the Member is living as husband and wife, or a person with whom the Member is living as if they were civil partners, and the Member is aware that that other person has the interest. Where notification takes place the interests notified are entered in the authority’s register (whether or not they are Disclosable Pecuniary Interests).

Section 31 of the Act deals with pecuniary interests in matters considered at meetings or by a single Member and applies where a Member or co-opted Member of a relevant authority is present at a meeting of the authority or of any committee, sub-committee, joint committee or joint sub-committee of the authority, has a Disclosable Pecuniary Interest in any matter to be considered, or being considered, at the meeting, and is aware thereof. If the interest is not already entered in the authority’s register, the Member or co-opted Member must disclose the interest to the meeting. If it is, then the Member or co-opted Member need only disclose that they have a Disclosable Pecuniary Interest in the matter concerned. Disclosure must also be notified to the authority’s monitoring officer within 28 days. The Member or co-opted Member may not participate, or participate further, in any discussion of the matter at the meeting, or participate in any vote, or further vote, taken on the matter at the meeting, but this is subject to the dispensation provisions in section 33 of the Act. Executive arrangements, where in operation, are similarly caught as is the position where a function of a relevant authority is discharged by a Member of the authority acting alone.

It is also a criminal offence under section 34 of the Act for a Member to fail to register a Disclosable Pecuniary Interests; to fail to disclose it at a meeting unless it is already registered; or to participate on a relevant item of business, unless the Member has a dispensation from the authority; or to take any action on the matter as a Member of the Executive, other than to refer the matter to another executive Member for determination. An offence is also committed if information provided is false or misleading and the person providing it knows that it is false or misleading, or is reckless as to whether the information is true and not misleading.

Conviction in the Magistrates’ Court carries a financial penalty not exceeding level 5 on the standard scale (currently £5,000) and there is also a provision for disqualification from office for up to five years. Prosecution can only be initiated by or on behalf of the Director of Public Prosecutions and may be brought within a period of 12 months beginning with the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to the prosecutor’s knowledge. The proceedings must be commenced within three years of the commission of the offence, or in the case of a continuous contravention, after the last date on which the offence was committed.

The new definition of Disclosable Pecuniary Interests (DPIs) is contained in the Relevant Authorities (Disclosable Pecuniary Interests) Regulations 2012 (SI 2012/1464), which apply to all local authorities in England.

There are seven specific categories of Disclosable Pecuniary Interest which are changed from the old Model Code of Conduct. These are: Employment, office, trade, profession or vocation; Sponsorship; Contracts; Land; Licences; Corporate tenancies; and Securities. Note that the definition of a Disclosable Pecuniary Interest is significantly different from the former prejudicial interest definition in so far as:  

• It applies to interests of the Member and their spouse or partner.
• It is wider than the old requirements for registration because they applied only to interests of the Member him/herself.
• It is narrower than the old definition for disclosure and non-participation purposes, because it omits reference to the Member’s family or friends. 
• It is broader than the old definition of a prejudicial interest, in that it is a Disclosable Pecuniary Interest even if there is no likelihood that it might prejudice the Member’s perception of the public interest.
• It is also narrower in that it applies only to defined categories of interest and omits reference to matters likely to affect the wellbeing or financial standing of the Member, or his/her family or friends.

The old standards regime was disapplied with effect from 1st July 2012 by the Localism Act 2011 (Commencement No. 6 and Transitional, Savings and Transitory Provisions) Order 2012 (SI2012/1463) (the Order). The new regime is brought into force from the same day although the old provisions still apply for resolving outstanding complaints.

So in respect of Disclosable Pecuniary Interests the position for Members must be quite clear. Provide proper and lawful disclosure and take no part in the relevant consideration and decision in order to avoid the criminal sanction and to avoid creating grounds for challenge to the decision made.

The Act also provides additional protection to Members who have expressed views on proposals before a Planning Committee. There is recognition in the ‘Localism Agenda’ that Members have a real and proper role to play in planning for their area. It is accepted that Members should be free to campaign, to express views on issues and to vote on those matters, without fear of being unjustly accused of having a closed mind because of it. Section 25 of the Act in effect makes clear that the normal activities of a councillor; campaigning, talking with constituents, expressing views on local matters and seeking to gain support for those views should not lead to an unjust accusation of having a closed mind on an issue that can lead to a legal challenge. The section makes clear that a decision-maker is not to be taken to have had, or to have appeared to have had, a closed mind when making the decision just because the decision-maker had previously done anything that directly or indirectly indicated what view the decision-maker took, or would or might take, in relation to a matter, and the matter was relevant to the decision but for the avoidance of doubt applies only to decisions made after this section comes into force although the reference to anything previously done includes things done before the section comes into force.

Clearly Members have to appreciate the distinction between on the one hand pre-disposition and on the other pre-determination.

Pre-disposition means having a tendency towards, or likelihood, of deciding a matter in a particular way but with the mind left completely open to the possibility of deciding otherwise in the course of the decision process e.g. by being influenced by the debate. It is clear that having an open minded disposition is lawful.

Pre-determination on the other hand means making up and closing your mind before a decision. If this happens then the decision is unlawful. The test is the same as for bias that is to say to a fair minded observer, who is suitably informed, and who having considered the facts would conclude that there was a real possibility of bias (see Porter v Magill). The general role and conduct of Members is they should not favour any person, company, group or locality, nor put themselves in a position where they appear to do so. Members who do not feel that they can act in this way should consider whether they are best suited to serve on a Planning Committee.

So what can Members actually do?

As a Ward councillor, a Member can support or oppose an application for planning permission and represent the views of their constituents

As a Planning Committee Member, a Member can also do so but must still retain an open minded disposition. To do otherwise would compromise their role on the committee and put any decision reached at risk of challenge.

Members can therefore engage in the debate surrounding a particular application or issue. This can include talking directly to developers and objectors; holding an opinion on a proposal; and expressing an opinion on a proposal (in and outside of a committee meeting). Members can certainly meet with any interested parties be it applicants, objectors or local residents. It is always best to do so with a planning officer present. When attending public meetings, Members of a Planning Committee should maintain an impartial role, listening to what is said and if expressing an opinion, should make sure that it is just that, not a fixed view.

It is important however that Members avoid the potential for any misunderstanding and misinterpretation that community groups and developers will seek to exploit. They should avoid for example advocating a particular outcome or directly opposing a particular position. They should not pre-determine the outcome before hearing all of the argument in the committee meeting. Members still need to take care to show that whilst they might have a view, they are open to the debate and will make their minds up on the basis of all the evidence.

When being lobbied Members of the Planning Committee should be very careful about nailing their colours to the mast too early. That could amount to pre-determination. If expressing a view then they should explain that it is an initial view and may change, taking all valid considerations into account. The involvement should be recorded should take place within clear published guidelines developed by the authority to assist both Members and their officers.

So there you have it.

Members of a Planning Committee have a responsible role to play. They are no longer restricted in the way that they previously were and can certainly play their part in the ‘political’ process of planning.

But there are concurrent obligations and responsibilities not least of which is the criminal sanction and they would be well advised to pay heed to them. The penalty for not doing so could be costly both to their finances and to any budding political career.

If you require advice on the specifics of any particular interest or issue associated with a development proposal please do not hesitate to contact me at my day job.