Peyto Law Instructed to Advise Liverpool City Region Combined Authority on the Spatial Development Strategy

Peyto Law has been instructed by the Liverpool City Region Combined Authority to provide legal advice and assistance during the preparation and publication of its Spatial Development Strategy (SDS).

The Combined Authority’s lead officer for spatial planning recently told the Planning Advisory Service heads of planning conference that the SDS for the city region would be prepared within two years, beginning with a scoping and visioning consultation this summer.

As part of the agreed arrangements, the SDS could make strategic allocations, but will not de-designate land such as Green Belt. 

A social impact evaluation will also be carried out as part of preparing the strategy.

Reasons …. Who Needs Reasons?

Notwithstanding the considerable amount of the Parliamentary time currently being spent on Brexit, the Secretary of State for Housing, Communities and Local Government has still found space to issue a Written Ministerial Statement (WMS) on 26 March 2019 in which he announced that he will no longer give reasons for calling-in or declining to call-in planning applications. A copy of the statement can be found here.

Regardless of upon which side of the planning fence you sit, this is unlikely to be welcome news. But, perhaps the Minister had something else in mind …

Theirs not to reason why,

Theirs but to do and die

Alfred, Lord Tennyson – The Charge of the Light Brigade

The power to call-in planning applications under s77 Town and Country Planning Act 1990 gives the Secretary of State a wide discretion in his decision-making. In 2001, the then Government announced that it would give reasons for decisions to call-in or not to call-in planning applications “in the interests of transparency, good administration and best practice”. This practice was confirmed in March 2010 and no change was made when the policy criteria for calling-in was amended by WMS in October 2012.

The latest WMS is the, perhaps not entirely unexpected, fall-out from the case of Save Britain’s Heritage v Secretary of Statement for Communities and Local Government and others [2018] EWCA Civ 2137 in which Save successfully argued that under existing policy ministers were obliged to give reasons when they decline to call in planning applications. The Secretary of State’s position was that, at some unknown date early in 2014, a decision had been taken not to give reasons for decisions declining to call in an application and that, since then, such decision letters have been issued without giving reasons. Even leaving aside that this change in policy was not communicated to the wider public, it transpired that no-nobody in the Department recalled or had in mind the unequivocal promise made in 2001 (and repeated in 2010) – it had been forgotten.

Transparency, good administration and best practice be damned.


Planning Inspectorate Updates Appeal Statistics

The Planning Inspectorate published updated average appeal timescales on 14 March 2019.

According to the figures, the average for s78 appeals (excluding householder appeals) from valid appeal to decision is 23 weeks (written representations), 43 weeks (informal hearings) and 50 weeks (inquiries).

Whilst this is bad enough, enforcement and lawful development certificate (LDC) appeals fair even worse where the average times are 40 weeks (written representations), 58 weeks (informal hearings) and 48 weeks (inquiries).

However, as bad as these figures are they do not provide the full picture; for that you have to go to the average timescales breakdown by stage.

s78 Appeals (excluding householder)


Valid – StartStart – EventEvent – Decision
Written reps
9 weeks12 weeks5 weeks
Hearings
22 weeks15 weeks4 weeks
Inquiries2 weeks37 weeks17 weeks

Enforcement / LDC Appeals

Valid – StartStart – EventEvent – Decision
Written reps25 weeks16 weeks4 weeks
Hearings31 weeks22 weeks4 weeks
Inquiries37 weeks28 weeks12 weeks

Unacceptable, no matter what side of the coin you are on.

We can only hope that the implementation of the recommendations in the Rosewell Report, and the recent appointment of two new Directors, will go some way to alleviate the problems, but absent additional resources at the Planning Inspectorate we fear it will be scratching at the surface.

Middlewich Neighbourhood Plan Rejected at Referendum

The Middlewich Neighbourhood Plan, prepared by Middlewich Parish Council, became just the third neighbourhood plan in the country to be rejected at the referendum stage yesterday (14 March 2019) following a recount.

1,085 residents voted against the plan whilst 1,063 voted in favour – a majority of just 22 votes. 3 ballot papers were rejected as being unmarked or wholly void for uncertainty. The turnout was 18.91% from an electorate of 11,376.

The first neighbourhood plan to be rejected at referendum was Swanwick Neighbourhood Plan in Derbyshire in October 2016. The second, last September, was Thornton Estate in Hull.

Planning Inquiries Set to Stay

Yesterday the government published the report of Bridget Rosewell OBE following her review into the planning appeal system.

At a time when backbench bills have promoted the idea of heavily restricting or removing the right of appeal from planning decisions, the report states that “there is much to commend in the current process” and identifies the perceived advantages of the public inquiry as follows:

The responses to the Call for Evidence confirm what we consistently heard at the stakeholder meetings that the ability to present evidence, and have it rigorously tested through cross-examination are very important for all the groups involved in the process. Other factors which were also highly valued were the ability for some matters to be examined in more detail than might be possible through either a hearing or written representation process and the opportunities available for the views of communities to be heard“.

It is therefore not unsurprising that the system is recommended to remain albeit with a series of reforms that are largely a common-sense introduction of good practice. That being said, the author frankly acknowledges the need for a culture change in the conduct of PINS as well as the provision of significant resources if the reforms are to work.

The statistics set out in the report all too clearly demonstrate the need for reform and additional resources:

  • An average of 315 inquiry appeals were decided each year in the last five years.
  • Around 81% of these were decided by a planning inspector (with the remaining decisions taken by the Secretary of State).
  • In 2017/18, average timescales for inquiries determined by an inspector were as follows:
    • Receipt to start letter – 7 weeks
    • Start letter to start of inquiry – 29 weeks
    • Start of inquiry to decision – 11 weeks
    • Receipt to decision – 47 weeks
  • Over the past four years, the number of appeals has reduced by 30% and the approval rate for appeal decisions has declined from 62% to 47% over the same period.

The report makes a total of 22 recommendations, ranging from committing the Planning Inspectorate to introducing a new online portal for the submission of inquiry appeals to setting out a strategy for recruiting additional inspectors so inquiries can be scheduled sooner, reducing the length of time they take to conclude.

According to the DCLG, the Planning Inspectorate will now prepare an implementation plan which will set out precisely how it will deliver these recommendations. Let’s hope that we do not wait too long!

Resident successfully challenges removal of Local Green Spaces status for playing fields

A local resident has won a High Court challenge over the removal of Local Green Spaces (LGS) status for playing fields from the London Borough of Richmond’s Local Plan.

The Teddington Society and Friends of Udney Park had applied for the status for Udney Park Playing Fields, a 12.5 acre site and following consultation, the Council adopted LGS status for the fields as part of the Richmond Local Plan.

During the public examination of the Local Plan the Council defended the LGS status while Quantum, a developer looking to obtain planning permission for 107 apartments, sought to have it removed.

In his report on the examination the planning inspector recommended a main modification removing LGS status from Udney Park. Richmond considered itself bound by the report and so gave effect to the main modification when it subsequently adopted the Local Plan.

The claimant argued that the main modifications did not make it clear that they included de-designation of the site, and therefore those in favour of retaining the designation were not given a proper or real opportunity to make representations on the point at this stage of the examination.

As a result, the claimant said, they were substantially prejudiced. Had they been made aware that this was a matter to be addressed in the consultation, they could and would have submitted further evidence and arguments on the point. They said it was conceivable in this event that the outcome would have been different, ie designation would have been retained.

Neither the Council nor the Secretary of State sought to defend the claim, but Quantum sought to resist the ground of challenge arguing that the de-designation of the site as LGS was not and could not have been the subject-matter of main modifications; accordingly, the Council, in undertaking the related consultation, was not obliged to refer to it. There was therefore no procedural error in the main modifications consultation process which was the only challenge made against the council, it added.

Mr Justice Waksman upheld the claim, saying that the claimant and Friends of Udney Park had suffered sufficient substantial prejudice as a result of the procedural defects. He quashed the relevant part of the Local Plan.

Richmond Council will now hold a six-week consultation on the inspector’s decision that had removed Udney Park’s LGS status from the Local Plan.

Peyto Law Acting for Epping Forest District Council as Local Plan Examination Hearings Get Underway

The Local Plan examination hearings for Epping Forest District Council (EFDC) got underway this morning (12 February 2019) at the Council Offices in Epping.

Louise Humphreys has been instructed by EFDC to provide legal advice and assistance to the Council during the examination process, working alongside Mark Beard of 6 Pump Court.

The first part of the hearings will focus on legal compliance; the plan’s context, vision & objectives and sustainable development; place-shaping & general masterplan approach; and the quantitative requirements for development.

The second part of the hearings, which will commence on 25 February 2019, will focus on the spatial strategy and distribution of development before a short break until mid March.

The hearings are being webcast and you can follow them here. Alternatively you can find out more about the examination process at the examination website.

Communities Secretary issues directions over Local Plan failure to two Councils

The Secretary of State for Communities, James Brokenshire, has issued directions to two local authorities, Wirral and Thanet Councils, on preparations for their Local Plans.

In both cases the minister said the requirements of s.27(1) of the Planning and Compulsory Purchase Act 2004 had been met for intervention in view of the councils’ failure to get a Local Plan in place.

The two local authorities are now required (within ten weeks of the letter for Wirral and four weeks for Thanet) to designate a lead councillor and lead official to be responsible for progressing preparation of the Local Plan.

In addition, Wirral has also been directed to publish an action plan, which must be verified by independent planning experts, and report monthly to the Ministry on progress whilst Thanet has also been directed, within eight weeks of the date of the letter, to amend its Local Development Scheme (dated July 2018) to provide for the completion of a review of their Local Plan within six months of its adoption.

Stevenage Borough Council in judicial review challenge over delays to Local Plan

Stevenage Borough Council has launched a judicial review challenge over the temporary holding direction of its Local Plan.

The Stevenage Borough Local Plan was submitted to the Secretary of State for Communities and Local Government on 21 July 2016 and received a positive inspector’s report in October 2017 recommending its adoption.

The council said that following the imposition of the holding direction, it had provided detailed information to the Ministry of Housing, Communities and Local Government (MHCLG) with all questions responded to by the start of last year.