Commercial Property

Recently the High Court has considered whether in a planning appeal if a report was not brought to the attention of a claimant this was against the rules of natural justice and was therefore unfair, rendering the appeal potentially void. 

The report, on the question of noise, was lodged as part of the developer’s appeal which was heard by way of written representation. 

Robin Purchas QC, sitting as a Deputy High Court Judge, decided that on the rules of natural justice, the claimant should have been aware of the documentation that was lodged with the Local Planning Authority. 

The judgement is full on this and the other point which was raised and, in my view, is not surprising. 

The question that was not considered is what is the position if the documents are not properly filed by the Local Planning Authority or not put on its website for downloading? 

Can a person then claim that an appeal should not be allowed, or does he then have a right of action against the Local Planning Authority? 

Although this was not considered, it is an area of interest and concern.  I am sure that I am not alone in endeavouring to inspect documents either at the relevant office of a planning authority or its website to find that not all documents are available. 

What happens, for example, if an inspection is made and the documents are subsequently filed?  There are no answers to these points as they will have to be decided by the Courts.  However, what is certain is that, as the case law currently stands, if anyone is involved in a planning appeal he should ensure that the planning file of the Local Planning Authority is inspected probably more than once.

One of my litigation partners is always saying that before he undertakes any litigation he needs to get his ducks in a row. A recent case about a planning enforcement notice highlights the need for this approach.

A gentleman had served on him an enforcement notice concerning  some works he had undertaking. The notice required him to remove a brick outhouse and some hard standing. The man objected to the notice and commenced appeal proceedings.

He lined up two ducks being:
A  He did not need planning permission
B That he wanted an oral hearing

The planning inspector shot both down and left intact the enforcement notice.

• That was appealed to the QBD where he argued that
• The Inspector had erred in law and
• That he should have varied the existing planning permission to incorporate permission for  the works

This is where the ducks are clearly out of line. The man making the appeal claimed that he had commenced work earlier than he had previously stated and that in any event the decision to continue with the enforcement notice was excessive. Neither point he had not previously made.

The QBD shot down all the ducks including those that were late into the air. That resulted in the enforcement notice being upheld.  Part of the reasoning was that the Planning Inspector had no obligation to seek out what were the grounds of appeal but to decide on what was presented to him.

The arguments may have been successful if the case was better presented. In other words there should have been more time spent in getting the ducks in a row.

Do you think that when the company was created anyone thought of the similarity in the name to a certain John Le Carre character. At least this company and the DCLG are fighting out there differences in the full glare of the courts and not in the labyrinthine realm of the Circus.

Pickles is, as they say, dead but will not lie down. He has announced that the Government will introduce legislation to push on with the abolition of the Regional Strategies. He has also announced that taking that into consideration the planners and the Inspectorate should bear his comments in mind.  See his letter of the 10th November to Chief Planning Officers.

I was recently at an interesting discussion on the potential use of mediation on town and country planning matters. The initial reaction, of the majority of the town and country planners, both in the private sector and the public sector, was that the idea was interesting but that they could not see how that process would easily fit into the system.

That issue is not the main point of this blog which is Cala. What Pickles hopes is that the professionals will ignore Cala and forget regional Strategies. From what I gathered that is unlikely to happen. Several of those present had appeals going on where the submissions had been drafted excluding reference to the Strategies and where that there is now a frantic rewrite. Whilst I can understand what Pickles is driving at it is strange, to a lawyer, to suggest that people should forget what the law says because the law should change.  What happens if the law does not change or the government changes its mind on its planning reforms? That would be good as  for the majority of what they propose but I doubt will happen.  Apart from that, I think a lot of people will want to revert to the regional Strategies because, for all their faults, a lot of the planning fraternity think they are better than what is proposed.

Communities Secretary Eric Pickles is not everyone’s flavour of the month in matters planning.  The removal of regional strategies and centrally imposed building targets has, for many involved in development and town and country planning, left a void which will result in fewer houses being built thereby exacerbating the current shortage.  However, not everything that Mr Pickles and his Department does is bad.  The Department of Communities and Local Government have produced technical guidance on permitted development for householders.  The intention behind the General Permitted Development Order is to enable small scale development to be undertaken without the necessity of obtaining planning permission thereby avoiding further clogging up the already overloaded planning system.

The document replaces earlier guidance.  The stated objective is to set out the rules concerning what extensions, improvements and alterations a householder may make to a house and the area around it without the need for a planning application.  The new guide is designed to be used by anyone who wants to understand more about the detailed rules on permitted development and the terms used in those rules.

Having read the guide and considered its diagrams, I have to agree that this document achieves its objectives.  In colloquial parlance, it does what it says on the tin.  As someone who has an expanding town and country planning practice, I confess that not only will householders find this document useful but at least one professional, namely myself.

Unfortunately at the time of writing this blog, the 26th August, the document does not appear on the website of the Department of Communities and Local Government nor on the website for national information.  If anyone wishes any information concerning this guidance, please contact me.

The Government has made much of its proposals stating that these give the Local Authorities “the freedom to prevent over development of neighbourhoods”.

Will this make a difference in Swindon and will it prevent over development?  According to the Government’s latest available figures which relate to 2005/2008, only 7% of all new building in Swindon was on previously residential land.  That is hardly a significant figure.  Whilst the proposals may have an influence in some areas, apparently not in Swindon.

In any event is there a problem with large houses with large gardens being redeveloped to meet modern needs?  Many people no longer want nor can afford large houses with large areas to maintain.  What this change in policy, coupled with the removal of the obligation to enforce national minimum density levels, is intended to achieve is  to ease the problem of the shortage of housing across the country. I doubt that it will have this affect.  I think it will exasperate the existing problem.