Prism Planning

Protected Species pickle.

admin — Mon, 28 Sep 2009 16:01:51 +0000

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.

Amending your hard won planning permission

admin — Wed, 01 Jul 2009 14:50:07 +0000

In the good old days, if you were building your new house and wanted to move your bathroom window a couple of feet from where it was shown on the approved plans, you simply wrote to the planners, politely requested a change to the plans and a few days later got a letter back telling you to go ahead, it was being treated as a minor amendment.
Since such straightforward times, case law has radically overturned such a relaxed approach and has triggered the need for the submission of revised applications for a host of trivial and non-contentious amendments to plans that had already been approved. The current approach is clumsy, time consuming and expensive, with fees for revised applications being the same as the original application fee. Small wonder that respondents to the recent ‘Killian Pretty review’ cited this area of planning as one of the most frustrating subjects, leading the review to conclude that urgent action was needed in this area.
At long last changes are going to take place to allow minor modifications to take place. However, as always, its not quite so straightforward as it might be and the government are currently consulting on how the necessary changes are going to work.
Firstly the Government are drawing a distinction between non-material amendments and minor material amendments with different routes being proposed under each heading.
A non-material amendment is a new option, introduced under Section 96A of the 1990 Planning Act. It won’t be a planning application in the conventional sense so won’t require extensive consultation statutory consultees although interested parties look like getting 14 days to comment. There isn’t going to be a definition of what is encompassed by the meaning of ‘non-material’ –each council will have to form its own view on this point. (Hurrah -I hear the lawyers cry!) The current approach looks like giving the LPA’s 28 days to turn around requests and a suggested flat rate fee of £170. The fee might be reduced to £25 for householders. However, it is likely that the new provisions will come into effect in October of this year but the ability to charge for them won’t be in place until sometime after this date. During this period, all applications will be free!
A minor material amendment is likely to be one whose scale and nature results in a development which is not substantially different from the one which has been approved. At present the government seem to think that this area will be deal with by means of an application under S73 of the Planning Act –the same facility we currently use to try and modify a condition on a plan. In this case, the condition we will be trying to modify is the condition which either lists the approved plans or which requires compliance with the approved plans. Its not yet clear what additional information might form the basis of an application and the government are going to be carrying out further consultations over the summer on this particular point. At present we are reminded that an application under Section 73 results in a new permission being granted so consultees are entitled to view and comment in the normal way. This seems to suggest that not a lots going to change!

Its not likely that the last option will result in a fast track route to fine tuning an existing permission although it will be relatively cheap at £170 a go. Its also helpful to have clarified that this route is open to practitioners as there has been some doubt in the minds of a few LPA’s. Of course, if the LPA in question haven’t helpfully recited all of the approved plans in a condition in the first place, this approach isn’t going to be of any particular use. We can therefore expect all LPA’s to start to list all of the approved plans forming the basis of their decision from here on in. If they don’t, you need to challenge them to do so !

From a practitioners viewpoint, it seems as if the minor material route is likely to be the one we need to use most frequently and its clearly going to be a cumbersome beast taking around 8 weeks a time to deal with. Still, on the up side its clearly going to be helpful to have something that we don’t currently have in place.

It’s not immediately apparent that it’s going to save a great deal of paperwork either as it will be applied for on the national forms with seemingly all of the normal application requirements. Cynics might still suspect that an application to move a bathroom window will still need to have a bat survey to validate the application! The days of the letter requesting a minor amendment seem to have firmly vanished with no immediate prospect of return!

Renewing planning permission

admin — Thu, 25 Jun 2009 08:11:36 +0000

One of the few areas of planning that has seen an upsurge in interest over the last year or so has been the renewal of an existing planning permission –usually for all the wrong reasons relating to the economic downturn.
In recent years we have seen the default time period for a planning permission reduce from 5 years to 3 years together with the removal of the option to make a simple application to extend it. All of this took place under a climate of optimism in the development world which resulted in some mandarins becoming concerned about a bank of unimplemented planning permissions making it difficult to plan for a proper future.
Those same mandarins are now facing a different scenario. The latest statistics suggest that only around 30% or major permissions are progressing to implementation within their current ‘shelf life’ and this is leading to fears that if/when we really do emerge from recession, there won’t be anything much to build because it will all have expired! In the first quarter of 2007, more than 1000 major applications were started on site. By the end of 2008, this had plummeted to less than 200.
The government have finally woken up to the problem. All LPAs have been reminded by Whitehall that there is absolutely no reason why they should not grant planning permissions with a longer life than just three years –its entirely within their discretion to give long periods. Seemingly you have only to ask….!
This leaves the thorny problem of renewing permissions. The easy and convenient mechanism of a simple S73 application has been lost to us as a result of government improvements to the planning system. But don’t worry, there is a possibility of bringing it back. A consultation exercise on this is running right now on just precisely how this will be achieved. Seemingly the principle is straightforward –its just the fee arrangements that are proving the stumbling block! At present, its being suggested that from October 2009 we will be able to renew permission by making a (relatively) simple application. However you need to be aware that the application fee for extending the permission will initially be the same fee that you would have paid for a new full application. Hardly the sort of response that the sector was looking for. At a slightly later date, this will change to a more modest flat rate renewal fee. Seemingly the government have the right to bring back provisions for renewal but can’t set a flat rate fee without permission from both Houses. This we are told will take some months. Seemingly we can spend hours debating the expense of the Speaker and other luminaries but can’t find 5 minutes to sanction the return of a provision that should never have been dispensed with in the first place. Still, its progress of a sort!
Further details of the full consultation can be found at http://www.communities.gov.uk/documents/planningandbuilding/pdf/1259498.pdf

Appeal Costs

admin — Thu, 21 May 2009 13:48:00 +0000

Welcome 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.