This months blog takes the form of a self confessed rant and allows me to blow off steam about one of the most frustrating aspects of planning –protected species.
We all accept that planning proposals can give rise to a wide range of impacts and that some impacts can be more significant than others. Proposals that impact upon a protected species (bat, badger newt etc) clearly fall into this category and rightly require very careful consideration. This has been the case for some time now and as developers agents we are used to procuring Phase 1 habitat surveys and breathing a huge sigh of relief when no bats or newts show up.
However bats aren’t as rare as perhaps we might expect and crop up frequently when dealing with buildings that have been up for a few years. Its fairly routine to find them associated with conversion schemes and to have to present detailed reports on their significance and how the development will work around them. I’ve recently been dealing with the conversion of some older buildings in which bats were found and the ecologists presented a detailed report on their numbers and significance. They provided a whole suit of mitigation measures including temporary bat boxes, and a bat loft to be built into the development proper as a permanent habitat. The roof on the building which gave the bats shelter was slowly being weathered away and the bats would soon lose their habitat through natural forces. The adjacent highway wasn’t so clever in high winds either with loose slates gusting down. Permission was initially refused on grounds that were nothing to do with bats and an appeal ensued. The inspector visited the site and looked at all of the bat issues. He gave consent, requiring the mitigation in the report to be implemented through a linking condition.
Now we get to the fun and games –despite having the permission granted at appeal, a European Protected Species Licence (EPSL) is required to implement the permission. The procedures for applying for this are set out in documentation provided by Natural England (NA). For anyone who has struggled with a new One App form, mastered it and thought themselves competent at form filling –think again. THE EPSL forms make planning forms seem like a ‘walk in the park’ and must be the most bureaucratic set of documentation ever to emerge from a quango. Seemingly the grant of planning permission is almost irrelevant in the process and the forms require a great deal of information on the need for the development and the benefit to society in undertaking the scheme. Referring back to the quasi judicial process of the appeal is evidently not sufficiently robust. One is left with the distinct impression that NA have determined their own parallel and far more stringent alternative to the planning system and its devised its own rules and interpretations on whether it is prepared to allow development. I know as an organisation they have often struggled to comment on applications within meaningful timescales –it seems they no longer have to worry about doing so, having devised their own alternative control system.
OK, I admit to being a little prejudiced about the new application system but I can’t help wondering whether the approach we now face is so overly complex, time consuming and anti-democratic that in the long run protected species will suffer through a system of controls that cannot be made to work in practice? The planning system has done an effective job of providing checks and balances for new development and has a long pedigree to prove it. To replace it, in practical terms if not in law, with the present cumbersome beast is, in my view a retrograde step. I think that those in charge of the new EPSL system should be encouraged to look again at their creation and consider whether it is really fit for purpose.
Archive for the ‘Planning permission’ Category
Appeal Costs
Thursday, May 21st, 2009Welcome to Prism’s first attempt at a planning ‘blog’. I know that it’s probably not as exciting as learning what David Cameron has just had for breakfast but there are things happening out there in the planning world which affect the way in which we all do business. We thought we would start off by looking at the new changes to the appeal system, in particular the new abilities to claim costs across the board.
If this might be of interest to you, read on…… If not, either go back to Mr Cameron’s breakfast for the day or tell me what else you would find interesting!
When fighting a planning appeal, both sides are responsible for their own costs, regardless of who wins or loses. The only time this script is departed from is when one party behaves unreasonably. Even then, the aggrieved party can only apply for costs if the appeal is being heard at either a public inquiry or an informal hearing. These formats account for only a very small proportion of appeals –less than 10%. The alternative format of appeal, the written representation, is the cheapest and quickest but couldn’t be used to claim costs back except in specialist enforcement cases.That’s all changed now under new rules that came into effect on 6th April. From now on, any appeal started after that date, regardless of whether its written representations, informal hearing or public inquiry can be used to claim costs where a party has behaved unreasonably.
Usually it’s the appellant aggrieved with the LPA which wants their costs but potential appellants need to understand it works both ways. Lodging any form of frivolous appeal can work against you but in my experience this rarely happens.
The new guidance goes on to give examples of what the government will consider to amount to unreasonable behaviour and it throws up some interesting new areas for you all to be aware of.
I thought I would draw your attention to a few of these in this note –some of them might cause your eyebrows to raise!
1) It is expected that applicants and LPA will have constructive pre-application discussions with each other. Where the LPA refuse or fail to provide reasonably requested information this can be valid grounds for an award.
2) Determining applications in an inconsistent manner!
3) Imposing conditions that fail the key tests set out in Circular 11/95
4) Refusing an application for a reason that could be overcome through the imposition of a condition instead.
5) Requiring the applicant to enter into a S106 agreement, the terms of which exceed current government guidance.
6) Relying on third parties to substantiate reasons for refusal
7) Withdrawal of grounds of refusal.
8) Not providing or agreeing a ‘Statement of Common Ground’ where relevant for an inquiry.
One area I thought I would bring to you specific attention concerns those times when you have a problem and are negotiating on a solution and then the Council decide, for reasons of their own performance that they are going to refuse your proposals. I know we have all faced such frustrating scenarios. The new guidance does not deal with this head on but there is a reference to an oblique situation which may be of interest. Where you are negotiating with the Highways Agency and are close to reaching a solution, the guidance does tell you that if the LPA refuse the proposal without waiting for the solution to emerge, they may be considered unreasonable because their actions have resulted in an unnecessary appeal.
The principles established by this will be interesting to say the least. We need a few ‘test cases’ to emerge and clarify just how far the Inspectorate have been told to go. What is clear is that LPA’s are far more exposed to costs than was previously the case and the scope for what is considered unreasonable has become much wider.
Like everything in the planning world, there is an enormous paper chase surrounding how all of this is to be administered and great deal of bureaucracy. However it’s all familiar to us at Prism so give us a shout if any of this strikes a chord with you.