A short tour round the Growth and Infrastructure Act 2013

The Coalition’s flagship Growth and Infrastructure Bill is no more.

But do not worry yourselves. Royal Assent has transformed it into the Growth and Infrastructure Act 2013. Gone for good are its clauses, to be replaced by sections.

So what are we left with after all of the political grandstanding, the interest group lobbying, the various debates and the horse trading?

Well, to start with the Act only amends other Acts. It does not stand on its own and will never really be referred to as legislation itself. On a practical point though this also reinforces the view that it is important not to use original HMSO copies of legislation when trying to establish what the precise position is because of subsequent and (so it so often seems) continual amendment.

Please also note that not all of the provisions come into force on the date of Royal Assent so that in the text set out below sections with an asterisk come into effect on 25th April 2013 (Royal Assent); the sections with a cross automatically come into effect on 25th June 2013 (two months after Royal Assent), while the remainder will only come into effect by means of later 'commencement order(s)'.

Finally, also note that some provisions provide for the making of detailed delegated or secondary legislation and therefore we will not know precisely what we are in for until we see the regulations or orders in Statutory Instrument.

In the meantime the Act provides as follows:

• S1 allows certain planning applications to be made directly to the Planning Inspectorate instead of to be defined poorly-performing local authorities (s1(1)* so far as it inserts the new section 62B in the Town and Country Planning Act 1990 (as amended)) 
• Ss2 & 3 provide greater powers to award costs in planning inquiries
• S4* deals with permitted development orders for changes of use and provides for neighbour consultations for house extensions (see my earlier post entitled “Permitted Development, Residential extensions and the law of unintended consequences”)
• S5 removes pre-adoption local development order intervention powers
• S6 restricts local authority’s in what information they can require with planning applications
• S7* allows for modification of s106 agreements relating to affordable housing provisions (New guidance has also been issued dealing with this element)
• S8 deals with local authority disposals of land held for planning purposes at less than best value
• S9* relaxes permitted development rules for telecommunication equipment
• S10 deals with the requirements for reviewing old mineral planning permissions
• Ss11†, 12† & 13 reforms the mechanisms for stopping up and diverting of highways and public paths
• Ss14 - 15, 16* & 17† limits the impact of town and village green registration applications
• Ss18†, 19*, 20 - 21 deals with energy consenting issues
• S22 removes the need to seek consent under the Planning Act for varying certain approvals received under previous regimes
• S23 removes the need for certificates under ss127, 137 & 138 of the Planning Act 2008
• Ss24 & 25 limits the scope of Special Parliamentary Procedure relating to development consent and conpulsory acquisition
• S26* extends the Planning Act regime to certain business and commercial projects
• S27 replaces existing provisions in development consent orders relating to road user charging
• S28 amends the Mayor of London's planning delegation powers
• Ss29† & 30† delay the revaluation of business rates for two years
• S31 introduces the employees’ shares-for-rights scheme
• Ss32*, 33*, 34 - 36 deal with typical procedural provisions relating to Orders, Consequential Amendments, Financial Provisions, Commencement and Title & extent of the Act 
• Schedule 1 puts flesh on the bones of the s1 provisions
• Schedule 2* deals with the s7 modifications
• Schedule 3 deals with the s10 provisions
• Schedule 4* follows on from s16 and adds a new Schedule 1A to the Commons Act 2006.

“Permitted Development, Residential extensions and the law of unintended consequences”

I have written previously about 'Tories, Residential Extensions, Article 4 Directions and Compensation' in which I suggested that “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…”.

 

Clearly I was not the only one raising concerns about the possible effects and implications of the proposal designed specifically to provide a much needed shot in the arm for local builders. Indeed the House of Lords amended the draft provision in the Growth and Infrastructure Bill the effect of which would have been to allow local planning authorities to opt out of the provisions altogether.

The Coalition did not wish to suffer yet another defeat in the face of growing discontent on its own backbenches and in the House of Commons the Secretary of State, Eric Pickles, made a commitment to give further consideration to the concerns of both Houses such that he then wrote a letter to all Members of Parliament giving the result of his review of the situation.

This resulted in the Coalition amendment which provides that in s.60 of the Town and Country Planning Act 1990 (planning permission granted by development order), in addition to the new subsection (2A) dealing with change of use, there are new subsections (2B) and (2C) which read as follows:

"(2B) Without prejudice to the generality of subsection (1), a development order may include provision for ensuring-

(a) that, before a person in reliance on planning permission granted by the order carries out development of land in England that is a dwelling house or is within the curtilage of a dwelling house-

(i) a written description, and a plan, of the proposed development are given to the local planning authority,

(ii) notice of the proposed development, and of the period during which representations about it may be made to the local planning authority, is served by the local planning authority on the owner or occupier of any adjoining premises, and

(iii) that period has ended, and

(b) that, where within that period an owner or occupier of any adjoining premises objects to the proposed development, it may be carried out in reliance on the permission only if the local planning authority consider that it would not have an unacceptable impact on the amenity of adjoining premises.

(2C) In subsection (2B) "adjoining premises" includes any land adjoining-

(c) the dwelling house concerned, or

(d) the boundary of its curtilage."

The Parliamentary Under-Secretary of State for the Department for Communities and Local Government (Baroness Hanham), in moving the Pickles amendment in the House of Lords, outlined the Coalition’s thinking behind the original proposal which was to “make it easier for thousands of families to undertake improvements to their homes” while remembering that “it is important to ensure that any impact on neighbours is acceptable”.

The amendment is, she said, to make “it possible for the Government to put in place protections for neighbours where adjoining homeowners seek to use our proposed extension to their permitted development rights”.

The amendment is therefore said to be a “light-touch neighbourhood consultation scheme” which recognises that larger extensions could be built without offering neighbours any opportunity to express their views and the Coalition has indicated that it will set out the details in secondary legislation.

The proposals will, it is said, remove the need for local authorities to feel that they have to resort to using Article 4 directions to remove the new permitted development rights. Indeed Baroness Hanham has indicated that the Coalition will work with the Local Government Association to update the Article 4 guidance as part of the Taylor review. Presumably to provide guidance to the effect that local authorities should not make Article 4 Directions in respect of such residential extension permitted development rights. It is to be noted however that there is (at least as yet) no proposal to specifically outlaw the making of Article 4 Directions in such circumstances.

Baroness Hanham sought to make clear that the revised approach will now ensure that under the new rights, in the case of larger extensions, any objection from immediate neighbours will be fully taken into account before permission is granted.

The amendment was agreed in the House of Lords and has now been approved in the House of Commons.

However, it seems to me at least that the wording of the amendment is problematic.

Development of land in England that “is a dwelling house or is within the curtilage of a dwelling house” (my emphasis) goes beyond just the larger extensions contemplated and catches ALL residential development rendering residential permitted development rights otiose.

This cannot be the intention of the Coalition and it is presumed that the detailed changes to be brought forward in secondary legislation amending the terms of The Town and Country Planning (General Permitted Development) Order 1995 (as amended) will make clear that the mechanism only applies to the increased sizes of extensions and not to all residential permitted development.

Indeed, in the Commons debate the Minister (Michael Fallon) when asked to confirm “that existing permitted development rights are not in any way affected by this new procedure, and that they are still there in perpetuity for people to use without any hassle” replied that “Yes, I can confirm that”. We shall see when the secondary legislation is published.

If however it is the effect of the proposed change then ALL such proposals will require submission of costly plans and where adjoining neighbours object the notification and dispute resolution mechanism will add intolerable delay which is precisely what the Coalition’s continuing attacks on the planning system are said to seek to avoid.

In addition, and even if the proposed change only applies to larger extensions, the formalising of the process into a ‘dispute’ between adjoining neighbours (rather than ordinary 3rd party planning application objections which may come from further afield) to be determined and adjudicated on by the local planning authority may have potentially serious implications for later sales by either party. The existence of the ‘dispute’ will, I believe, need to be disclosed to potential purchasers which may prejudice valuations or sales completely (see for example section 2 in the Law Society standard TA6 property information form (2nd edition)).

Neighbours are therefore going to have to consider whether they bring forward controversial proposals or object when proposals are brought forward. Additionally, those who advise on conveyancing transactions are going to have to be alive to the potential disclosure requirements.

On any view the original proposal was bad enough. The suggested solution in my view makes the situation worse and just goes to demonstrate the haphazard muddled thinking of the Coalition.

"What’s past is prologue"

"And we are scatterlings of Africa 

Both you and I

We're on the road to Phelamanga 

Beneath a copper sky

And we are scatterlings of Africa 

On a journey to the stars
Far below we leave forever

Dreams of what we were

Hawu beke Mama-ye! Mama-ye!
In the beginning

Beneath the copper sky
Ancient bones

In the dust of Olduvai
Who made us, here, and why, Remember!"

Johnny Clegg

I returned to South Africa a couple of weeks ago for a short holiday together with Mrs M (aka she who has everything and wants for nothing). I was born in South Africa and notwthstanding having lived there for 14 years I have never really thought of myself as a South African although I suppose I am part of the wide ranging South African diaspora and, if truth be told, had always wanted to return at least one last time.

I had last flown out of Jan Smuts international airport after a fleeting family visit in the late 1970’s. The airport had been named after a celebrated South African Boer War commander and subsequent international statesman, he being the only person to sign the peace treaties ending both the First and Second World Wars.

After the release of Nelson Mandela and the dismantling of apartheid, the African National Congress (ANC) government had renamed the airport as Johannesburg International Airport in 1994 on the grounds that ‘South African airports should not be named after political figures’.

This was all rather ironic since we flew back into Oliver Tambo international airport. He of course was an anti-apartheid politician and a central figure in the ANC having formed the ANC Youth League along with Mandela and Walter Sisulu.

That name change apart the airport has changed beyond recognition and certainly beyond my fading memory. It is now a bright, modern 21st Century transport hub having been redeveloped, at least in part, for the 2010 Football World Cup.

But of course the point of my latest visit was not that of a ‘plane spotter’ revisiting old haunts. We, along with the newly-wed Schumanns (for whom this trip was our wedding gift to them), were off to see big game.

There were along the way numerous renditions of ‘The Lion Sleeps Tonight’ which of course, while highly entertaining, is completely inaccurate. Lions are neither jungle animals nor do they sleep at night.

Panthera leo in flagrante delicto
South Luangwa 2010

I did however remember the interesting story of Solomon Linda who wrote the song "Mbube" which later became the popular international music success in The Lion King. He died in straightened circumstances without having benefited financially from this success which raised interesting questions of copyright in respect of traditional and folk songs and which eventually led to sucessful proceedings based in part on the Imperial Copyright Act 1911 resulting in a financial settlement for his heirs.

But I digress.

We immediately flew out of Johannesburg heading northwest towards the Botswana border. Our Fed Air Cessna Grand Caravan bounded down the runway heading for Madikwe East and another big adventure. We were looking to see the 'big five' and we were not to be dissappointed.

One thing that has not changed in South Africa is the warm and hospitable welcome of its peoples. We were not let down. The staff at Madikwe River Lodge were absolutely wonderful. Another is its love of its wildlife heritage and its superb conservation efforts. Its national parks and game reserves are absolutely fantastic and we were treated by our Ranger, Takura, to magnificent encounters as the photographs below demonstrate.   

Panthera leo
Madikwe 2013



Loxodonta africana
Madikwe 2013

Ceratotherium simum
Madikwe 2013

Syncerus caffer
Madikwe 2013

Panthera pardus
Madikwe 2013

Indeed, we were also fortunate to see African wild dogs - a first for me.

Lycaon pictus
Madikwe 2013

But animals do beastly things to one another. With thanks to Rob Schumann for these two particular photographs and the leopard above. 

Breakfast
Madikwe 2013

Time for bed
Madikwe 2013

Indeed, I was particularly fortunate to survive a very close encounter in our chalet with a 'young' red spitting cobra who felt the need to join me as I enjoyed an afternoon nap. Contrary to popular belief snakes are not slimy and indeed are both dry and rather warm as I soon discovered. Needless to say we were both rather startled when we finally established just who we were sleeping with! Luckily we both survived to tell the tale.

But as the apex predator, man is at the same time capable of unbelievable cruelty and wanton destruction in respect of that cherished and protected wildlife. The callous butchery associated with the poaching of Rhino horn and Elephant tusk is barbaric and beyond belief. All for a thoroughly discredited 'medicinal' benefit or outdated ornamental vanity.

The figures are mindboggling. 203 Rhino have been killed this year in South Africa alone! 

And as for elephant, it is estimated that there are only between 470,000 and 690,000 surviving in 37 countries across the whole sub-Saharan region of Africa.

I certainly do not profess to have all or indeed any of the answers. There is a legitimate debate to be had regarding the best way for wildlife to be conserved and managed whether by relocation, culling and yes, even by strictly regulated licenced hunting although, for my part, I really would prefer not to see healthy animals killed merely for an outdated notion of 'sport'.

But what I do know is that we have to change our own mindset and those in China, Vietnam and all those other far eastern countries which fuel the sensless slaughter to cut off the demand for Rhino horn and Elephant tusk. If we do not we will pretty soon no longer be able to view these magnificent animals in a wild setting (albeit in national parks, reserves and private game parks) and that, at least from my perspective, would be a sad sad loss.

Environmental judicial review claims - reform of protective costs orders

The Aarhus Convention has three limbs as follows:

·            the right to access environmental information held by public authorities;

·            the right to participate in environmental decision making; and

·            the right to challenge breaches of the first limbs.

Article 9(4) thereof states that as part of the access to justice requirement, review procedures to allow the public to challenge refusals to provide environmental information; the legality of decisions, acts or omissions subject to the public participation rights; and acts or omissions which breach national environmental laws, must be "fair, equitable, timely and not prohibitively expensive". 

In 2010 the Aarhus Convention Compliance Committee found that the UK was in breach of its obligations under Article 9(4) with respect to the judicial review costs rules in England and Wales (see Port of Tyne Complaint ACCC/C/2008/33).

The case involved a challenge to a government licence concerning the port and disposal of contaminated dredgings which it was said was prevented by the costs system. In upholding the complaint, the Compliance Committee concluded that the discretion of the courts in determining costs had led to significant uncertainty. In addition it also found that the current system did not give the public interest of environmental claims in and of itself sufficient consideration.

The ordinary costs rule under the CPR is that the unsuccessful party will pay the costs of the successful party, although the court may vary this at its discretion (CPR 44.3).

Protective Cost Orders (PCOs) are orders generally made at an early stage of judicial review proceedings which state that an unsuccessful claimant will either not be required to pay the costs of the defendant, or will only have to pay up to a maximum amount. This provides some costs certainty to claimants who might otherwise be deterred from bringing a judicial review claim.

Criteria for the issue of PCOs were laid down in R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192.

These criteria provide that a PCO may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that:

·            the issues raised are of general public importance;

·            the public interest requires that those issues should be resolved;

·            the claimant has no private interest in the outcome of the case;

·            having regard to the financial resources of the claimant and the defendant(s) and to the amount of costs that are likely to be involved it is fair and just to make the order; and

·            if the order is not made the claimant will probably discontinue the proceedings and will be acting reasonably in so doing.

If those acting for the claimant are doing so pro bono, this will be likely to enhance the merits of the application for a PCO. It is for the court, in its discretion, to decide whether it is fair and just to make the order in the light of the considerations set out above. The court stated that a PCO will only be granted in the most exceptional of circumstances. The granting of PCOs, the conditions attached to them and the level of the costs cap is entirely at the discretion of the court.

The Court of Appeal has modified the criteria for PCOs in planning cases involving points of EU environmental impact assessment law (see R (on the application of Garner) v Elmbridge Borough Council in respect of general public interest requiring an effective review process in environmental cases) and the courts are alive to exploitation of that e.g. R (on the application of Young) v Oxford City Council [2012] EWCA Civ 46 where Richards LJ held that even though the case could broadly be termed an environmental case it did not engage directly effective provisions of EU law.

In October 2011, the Ministry of Justice consulted on a costs capping scheme for cases falling within the Convention. As a result of the consultation, the Civil Procedure (Amendment) Rules 2013 (SI 2013/262) were made on 31 January 2013. The rules came into force on the 1 April 2013, and provide for new CPR 45.41 – 45.44.

Under the new rules:

·            Claimants in cases that fall within the Convention will automatically have their liability for the defendant's costs capped at £5,000 if they are an individual and £10,000 if they are an organisation;

·            Defendants will have their liability to pay claimant's costs capped at £35,000;

·            Costs protection will apply from the time that the claim is issued;

·            Defendants may challenge whether the claim falls within the Convention; and

·            There is no mechanism for challenging the level of the costs caps in a Convention claim.

Given the greater costs certainty provided it may be that more judicial review claims are brought on grounds falling within the scope of the Convention which may impact on a wide range of construction, infrastructure and energy projects although claimants will still bear the risk relating to their own costs.

There are of course additional proposals consulted upon and awaiting Coalition response relating to a reduction in the time limit for bringing a planning judicial review down to six weeks. In addition, measures to ‘head off’ hopeless cases are, according to the Daily Telegraph, under consideration and may involve claimants paying defendant’s initial costs up to acceptance of the claim by the court.