Update | Planning: government initiatives

The first anniversary of the controversial National Planning Policy Framework (NPPF) passed on 27 March and now means its full force will apply. The government gave local authorities one year to update their development plans to ensure they accorded with the policies within the NPPF. Where local authorities have not managed to do so the NPPF takes precedence over their development plan.

Putting a development plan in place, however, is easier said than done. It requires a considerable evidence gathering exercise to be undertaken, and the need for strategic environmental assessment (SEA) and an examination means that the plan preparation process typically takes years not months. It is also not unusual (as has recently been seen in north Somerset) for developers and landowners to successfully challenge local plans leading to further delays in their implementation. It is perhaps unsurprising that against this backdrop the introduction of the NPPF has not seen a rise in the number of development plans being brought through to adoption. Indeed, it appears that the number of plans adopted in the 12 months following the introduction of the NPPF is actually lower than in the preceding 12 months although there is no evidence the NPPF has contributed to this.

The NPPF does look to be having a more positive effect in terms of securing planning permissions, particularly for housing development. The NPPF has filled the void left by the removal of regional strategies and a considerable number of developers have successfully relied on the NPPF when arguing that local authorities' housing land supply numbers have been inadequate.

Having done away with planning policy statements and guidance (PPSs and PPGs), government is now looking to implement the recommendations of Lord Taylor's review, which found that the existing planning practice guidance was not fit for purpose, and recommended that much of it should be condensed into a single suite of government planning policy guidance. The consultation closed in February and the bonfire of guidance is expected to be lit during the course of this year.

The anniversary of the NPPF has coincided with Eric Pickles' announcement that the last three regional strategies (West Midlands, South West and North West) are to be formally revoked. This marks the end of a process that began almost three years ago when Pickles announced his intention in Summer 2010 to revoke the strategies and that from that point forward they should have no material weight.

This saga has provided a useful reminder that the courts will insist that the rules are followed. CALA Homes' bold decision to challenge the Minister's initial attempt to wipe away the regional strategies almost by press release, proved many wrong who believed that CALA would achieve nothing for their own scheme in Winchester. Achieving a lawful revocation of the suite of regional strategies has taken some time, and included the need for a strategic environmental assessment of the plan to do so.

The government is proceeding with a change to permitted development rights for change of use, for a three year temporary period, from class B1(a) office to class C3 residential, to come in force in Spring 2013, which is understood to mean 30 May 2013. This is intended to reinforce a policy in the NPPF which is supportive of changes of use from commercial to residential use, subject to certain caveats. The conversion of offices to residential use is controversial with many local authorities, who are often keen to preserve employment uses to the maximum extent. This change has had a long gestation from the government's original, much wider, proposal in September 2012. The change of use is subject to a prior approval process covering significant transport and highway impact and uses in areas of high flood risk, land contamination and safety hazard zones.

Local authorities have been given a one-off opportunity to seek an exemption based on expected adverse economic impact at a local level, or on a nationally significant basis, and many such applications have been made. The government will review the position after three years with a view to a possible extension.
The permitted development rights do not cover any physical works needed to bring the change into effect, which will give the planning authority a lever in many cases. It remains to be seen how big an impact this will have in practice, but it is clear that it will be attractive to some developers and will continue to make many local authorities nervous.

Increase in legal challenges?

On 1 April 2013 a new regime (Civil Procedure (Amendment) Rules 2013 (SI 2013/262)) for protective costs orders (PCOs) for environmental judicial review claims that invoke the Aarhus Convention came into force. Under the new rules, an individual claimant's costs exposure can be limited to 5,000 and that of an organisation to 10,000. A defendant's liability for a successful claimant's costs will be limited to 35,000. This is a dramatic reduction in the costs risk to which claimants have otherwise normally been exposed, if they could not secure a PCO.
These rules can be seen as a logical extension to the body of case law that has evolved over the past few years regarding the availability of PCOs in judicial review challenges, most notably the way in which the original Cornerhouse principles have evolved through cases such as Morgan v Hinton Organics [2009] EWCA Civ 107, R (on the application of Garner) v Elmbridge Borough Council [2010] UKSC 57 and R (on the application of CAT) v SoS for Energy and Climate Change.

While it seems inevitable that this costs protection will increase the number of challenges being brought, it does not sit comfortably with the government's consultation on changes to the judicial review process, which will limit the time within which planning judicial review claims can be brought to six weeks and remove the right to an oral renewal hearing in certain circumstances, including where a claim has been determined on the papers to be without merit.

A further challenge for the courts will be to develop clear guidelines as to what is needed to bring a claim within the remit of Aarhus. Given the advantages of the costs protection available, there will be an inevitable temptation on claimants to seek to run arguments which will increase the chances of a case falling within this regime.

Equality in planning

The implications of the Equality Act 2010 for planning are starting to settle down, though it is inevitable that from time to time this legislation will produce a central issue on a planning decision. Barnet Council was one of the first councils to fall foul of this legislation in its decision to grant permission for a primary school extension on the site of a garden centre which had been used as a recreational and educational facility for the local community, including the elderly and those with disabilities. It conceded it had failed to comply with the Act and submitted to judgment.

When it granted the permission a second time, it is clear that the council had, unsurprisingly, gone out of its way to minimise the risk of another successful challenge. In particular it had carried out a consultation which expressly discussed the Equality Act issues and the council's duties as a relevant planning matter. Furthermore, there was a specific discussion of these issues included in the report to the planning committee. The council granted permission on the basis that the benefits of the education facilities outweighed the adverse impact on those with "protected characteristics", as defined under the Act.

The council's obligations under section 149 of the Act are to have "due regard" to the need to (i) eliminate discrimination, harassment and similar conduct; (ii) advance equality between those that have protected characteristics (which include disability and age); and (iii) foster good relations between those groups with and without a relevant protected characteristic.

In the second challenge, the court (R (on the application of Coleman) v Barnet LBC [2012] EWHC 3725 (Admin)) found that the council had adopted a coherent approach which discharged this duty as part of the overall balancing exercise in making its decision. In particular, the court rejected the claimant's submission that the council had to have regard to each category of protected characteristic and each sub-group (e.g. different types of disability) separately as being unduly onerous and beyond that required under the Act. This is a welcome clarification as the implications for local authorities could have been considerable.

The government is continuing to respond to feedback on the operation of the Nationally Significant Infrastructure Project regime under the Planning Act 2008. It had originally been intended that refinements to the system would await a review in 2014, but much of the work of that review continues to be done in advance. On top of the substantial Localism Act changes, there were a series of consultations during 2012 which are now bearing fruit, with more to come when the Growth and Infrastructure Bill is enacted.

The most recent changes took effect on 6 April and show the government's determination to make the NSIP process as much of a one-stop-shop as possible, which has been the elusive Holy Grail for major, complex projects for many years. The latest changes make it far easier to include a range of consents within the scope of a development consent order than was previously the case, by removing the right of veto by the consenting authority. In addition the planning inspectorate is setting up a new consents service unit which is to co-ordinate work in relation to the consents which still remain outside the DCO application. In addition, the list of statutory consultees for pre-application consultation which was widely regarded as disproportionate and burdensome has been sensibly cut back, and the key pre-application guidance has been updated in the light of experience.

One key area of continuing concern for developers is the regime to amend DCOs which is considered to be disproportionate. Now that the number of granted DCOs is starting to grow, with the Department for Energy and Climate Change having issued its first consents (and a refusal), this is likely to become an important issue.

Julian Boswall is a partner and Craig Whelton is a senior associate at Burges Salmon