Masthead Local Govt - Planning

Law Society criticises proposed government approach to planning conditions

The Law Society has expressed concern that the government’s proposed new approach to planning conditions was “overly prescriptive and risked generating more appeals as a result of refusal or non-determination of planning applications”.

The Ministry of Housing, Communities and Local Government’s consultation on draft regulations intended to improve the use of planning conditions ran until 27 February.

It invited comments on draft regulations which create an exemption to the requirement in the Neighbourhood Planning Act 2017 that local planning authorities obtain the written agreement of an applicant before imposing a pre-commencement condition on a grant of planning permission.

In its response Chancery Lane’s Planning & Environmental Law Committee said the generation of more appeals was an outcome that “would defeat the object of the exercise”.

The Committee went on to propose alternative approaches to meet the government’s objectives.

The Committee’s response, which can be downloaded here, was as follows:

Q1: Do you agree that the notice should require the local planning authority to give full reasons for the proposed condition and full reasons for making it a pre-commencement condition?

We agree with the requirement to give reasons for proposed conditions but are concerned that the meaning of “full reasons” is undefined (and is not defined in S100ZA of the 1990 Act) and could thus lead to litigation in the same manner as happened with “summary reasons”.

It may be preferable to apply the recently affirmed standard for reasons in the Dover case(1) – “proper, adequate and intelligible”, also per South Bucks(2) many years before.

(1) Dover District Council v CPRE Kent; CPRE Kent v China Gateway International Ltd [2017] UKSC 79

(2) South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953

Q2: Do you agree with our proposed definition of “substantive response” set out in draft Regulation 2(6)?

A developer veto without reasons is also unlikely to help achieve government’s goals if it increases the number of non-determinations and thus appeals. Furthermore, the Planning Inspectorate may find it unnecessarily difficult to deal promptly with such appeals if the developer’s reasoning for bringing them is not known at the outset.

We suggest that developers should be expected to give “proper, adequate and intelligible” reasons for refusing a condition, just as planning authorities should do for proposing them.

Q3: Do you agree with our proposal not to give local planning authorities discretion to agree with applicants a longer period than 10 working days to respond to the notice?

We propose that planning authorities should have discretion to allow a longer response time where this facilitates an agreed position during the notice period. Given that a longer notice period can benefit an applicant there shouldn’t be negative consequences from the additional “delay”.

If a limitation is sought, the regulations could emulate recent changes in Environmental Impact Assessment by permitting extension by agreement up to a maximum (90 days for EIA).

Q4: Do you have any other comments on the draft regulations?

While commending their brevity and clarity, we have concerns that the regulations as proposed are overly prescriptive and could lead to unnecessary increases in appeals – thus defeating their original object. We hope that our proposed amendments offer constructive solutions and would be happy to assist the Ministry further.

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