News & events
PLANNING CONTINUES TO PROVIDE FRUITFUL AREA FOR LEGAL CHALLENGES
Now in its 16th year, LGG’s annual Planning Law Conference is established as an essential event for anyone involved in the planning process. Presented once again this year in association with Landmark Chambers, the day covers case law update, policy changes, prosecutions, an update on enforcement and the Planning Act 2008. We asked Landmark’s Christopher Lockhart-Mummery QC, who will chair the day, to give us his expert opinion on a few of the issues certain to take centre stage.
Q: Are we likely to see challenges under article six of the Human Rights Act as a result of the new appeals system? And is the new system a fair one?
A: The new section 319A of the Town and Country Planning Act 1990 gives the Secretary of State power - to be exercised by the planning inspectorate - to determine the procedure for dealing with a wide range of appeals. The criteria which is used for this process are set out in Annexe C to PINS Procedural Guidance Note PINS 01/2009. The note states that the Inspectorate “will ensure that the most appropriate and proportionate appeal procedure is selected through the application of the criteria, careful consideration of any representations and appropriate expert involvement”.
A successful article six challenge is unlikely. An oral hearing is required under article six (1) only if, in the circumstances, it is necessary for a fair hearing: Ex p Vetterlein. It is unlikely that the inspectorate would impose the written representations procedure in breach of this test.
Whether the new system is, in all respects, fair—or indeed practical—is another matter. I have particularly in mind the intended severe restriction on amendments to schemes, and on “new material”. In short, there are countless occasions where, in response to an objection, an amendment is made to a scheme, or some new material such as a response to a particular traffic objection, is introduced. There are robust safeguards already in place to prevent unfairness to any party, including local residents. It is an unnecessary and retrograde step to remove this desirable flexibility in the process.
Q: Is the intended “greater flexibility for planning permissions” procedure likely to achieve its purpose?
A: Consultation on these proposals ended on August 13 and they are intended largely to come into effect on October 1. There are three changes proposed:(1) extensions to the time limits for implementing existing planning permissions, (2) minor material amendments, and (3) non-material amendments.
I comment only on the first of these. It will require a fresh planning application and would result in a new permission with the only change being a new time limit. It will presumably be effected by a change to the GDPO (general development procedure order). The difficulty, which is indeed recognised in the consultation paper, is that the full rigour of the statutory requirements will apply, for example section 70(2) of the 1990 act, section 38(6) of the 2004 act, and environmental impact assessments. This could be a fruitful area for legal challenges.
Q: What is section 327A of the 1990 act?
A: Introduced by the 2004 act, this provides that a local planning authority “must not entertain” any application made under the act where there is any procedural defect, or defect in form or content of any document or matter which is required to accompany the application.
The previous legal test in this area was if prejudice had been suffered by a party. This new absolute test has significant implications—for applicants and planning authorities - who already have enough burdens, and for the spoiler (whether objector or competitor) who will be able to mount challenges to the grant of planning permissions with no substantial merit.
The 16th Annual Planning Law Conference takes place at the Royal College of Surgeons in London on December 14 and carries 5.0 CPD points.
For further details and to book a place email bookings@lgg.org.uk