by Martin Edwards and Andrew McCafferty
1990 is likely to be remembered for years to come simply because it saw the consolidation of planning legislation into the Town and Country Planning Acts 1990. It would be wrong, however, to treat that as the most significant development of the year as many other events occurred which will have far-reaching consequences for the planning system as the pace of change continues unabated. This article concentrates, for reasons of space, on some of the events of the year which may affect the way those in property development operate. Some of the effects of last year’s events will continue to be felt for some time.
Change at the top
No review of the year could ignore the dramatic events in November which culminated in the resignation of Margaret Thatcher as Prime Minister and her replacement by John Major. One consequence of this was the return of Michael Heseltine to the Department of the Environment as Secretary of State. In the short time that Chris Patten had been Environment Secretary several important changes to the planning system were either brought in or heralded and the effect of his brief tenure in office will continue to be felt for some time to come. Because the change of Environment Secretary took place at the end of the year, most of the developments can be associated with Chris Patten rather than his successor. On a flippant note it could be argued that the department has taken its enthusiasm for recycling to extremes by the appointment of a recycled Environment Secretary!
Consolidation of legislation
The 1971 Act and all its numerous amendments were consolidated into four new Acts. The Town and Country Planning Act 1990, the Planning (Listed Buildings and Conservation Areas) Act 1990, and the Planning (Consequential Provisions) Act 1990 all came into force on August 24 1990. The fourth Act, the Planning (Hazardous Substances) Act 1990 requires a commencement order before coming into force. As the new Acts are consolidating Acts no changes of substance have been made but a number of drafting changes were made which means that it has been impossible to devise a simple formula for calculating the new section numbers. Consequently, practitioners will have to learn all the new section numbers although a variety of guides were produced by some firms to make the process of adjustment that much easier.
Welcome relief for practitioners can be found in section 2 of the Planning (Consequential Provisions) Act 1990 which provides that any act done under, or any reference to, a provision of the old 1971 Act is deemed to have been done under or a reference to the corresponding provision of the relevant consolidating Act.
New and draft PPGs
A number of new and draft PPGs were issued during the year. The new PPGs are PPG 14 Development on Unstable Land, PPG 15 Regional Planning Guidance, Structure Plans and the Content of Development Plans and PPG 16 Archaeology and Planning. Of these, PPG 15 is the most important as it provides a pointer to the future where forward planning will assume a much greater role than has hitherto been the case. Developers who ignore the advice in this PPG and pursue inquiries in the face of major policy objections can expect little sympathy from inspectors. The Planning and Compensation Bill provides another twist in the tale by introducing the concept of mandatory district-wide local plans and the combination of this with the advice found in PPG 15 will probably lead to a more difficult climate for developers and an increased role for local plan inquiries.
Draft PPGs issued either at the end of 1989 or during the year covered structure plans and regional planning guidance which eventually emerged as PPG 15, archaeology and planning which became PPG 16 in its finished form and sport and recreation which is still in draft form and already shows signs of becoming fairly influential in development control.
Consultation papers
The department issued a number of consultation papers during 1990 which provide a glimpse of what the future has in store for planners and lawyers. Some covered topics of limited interest such as minor amendments to subordinate legislation. There were others that, while not arousing much in the way of enthusiasm among practitioners, could prove to be of some use if acted upon. For example, the consultation paper on encouraging the use of vacant public-sector land was aimed at reducing the amount of land owned by public bodies lying idle in urban areas. Statistics produced by the Government show that nearly half the land used for residential development in 1989 was either previously developed or vacant in urban areas. The proposals outlined in this paper included greater powers to be given to the Secretary of State to direct disposal of land.
Other consultation papers of note included one on the demolition of houses which is likely to attract new attention as an issue in 1991 due to the decision of the High Court in January of this year in the Cambridge City Council* case, which apparently decided that the demolition of two houses required planning permission. The paper on permitted development rights for satellite dishes may suffer the opposite fate because shortly after publication the two satellite television stations merged so that the problem that the paper sought to address lost some of its urgency.
Private Bills
The Government published its response to the report of the joint committee on Private Bill procedure in its consultation document Private Bills and New Procedure. The Government has accepted many of the suggestions in the joint committee report and has proposed a system under which the promoters of railway, light rapid transit and harbour works would apply to the Transport Secretary for an order to authorise the project. The system also makes provision for public inquiries to be held where there are objections to the criticisms that have been levelled at the existing system about the inability of the public to effectively object to these types of project. If the proposals are enacted then it is anticipated that the volume of private bills in Parliament will be halved.
More work for the lawyers
The courts continued to be active during 1990 determining a number of interesting and relevant issues. The dispute over the Secretary of State’s decision in the Mansion House appeal rumbled on with the Court of Appeal reversing the decision of Simon Brown J in the High Court: see Save Britain’s Heritage v Secretary of State for the Environment [0] 3 PLR 50. The Court of Appeal held that the Secretary of State’s reasoning had not been sufficiently clear on a number of substantial issues such as the merits of the existing buildings, the degree of improvement the scheme provided over the existing buildings in respect to quality, the implications for other listed buildings and the application of policy in Circular 8/87 — Historic Buildings and Conservation Areas — Policy and Procedure. The inadequacy of the Secretary of State’s decision was such that a person entitled to apply to the court under section 245 of the 1971 Act (section 288 of the 1990 Act) could not know if the decision had been made within the powers of the Act. Consequently, the Court of Appeal quashed the decision. This case is now, at the time of writing, before the House of Lords and that decision will be eagerly awaited and will no doubt figure in any review of this year.*
One long-running saga that finally came to rest was the County Hall case: London Residuary Body v Lambeth London Borough Council [0] 1 WLR 744. The House of Lords resolved the debate over whether the competing needs test, that is to say, where in a planning application the need for and desirability of preserving the existing use was weighed against the need for and the desirability of the proposed new use, amounted to a legal obligation on the decision-maker to consider the competing needs test. Their lordships considered that while the Clyde & Co v Secretary of State for the Environment (1977) 244 EG 1024 and Westminster City Council v British Waterways Board (1984) 272 EG 1279 cases were authority for holding that the desirability of retaining an existing use was a material consideration and that it might amount to a valid reason for refusal, they did not lay down that the competing needs test existed as a matter of law.
Some of the cases that were heard last year attracted little publicity but this should not detract from their importance. An example of this is R v Swale Borough Council, ex parte Royal Society for the Protection of Birds [1] JPL 39 in which the High Court dismissed the society’s application for judicial review of a decision of Swale Borough Council to grant planning permission on a mudflat of importance to migrating birds on the ground of delay even though the application was made within the three-month time-limit in RSC Ord 53, r4 and the question of delay had been fully argued between the parties at the hearing for leave to apply. This case underlines the importance of prompt action when seeking judicial review under Ord 53 of a local planning authority’s grant of planning permission. It is not sufficient to wait until well into the three-month time-limit.
Hillingdon London Borough Council v Secretary of State for the Environment [0] JPL 575 is a reminder that any attempt to keep a planning permission alive by carrying out a token commencement of the development is fraught with difficulty. The key test is not whether the developer in carrying out the works intended to keep the planning permission alive, but whether he intended to carry out the development even though he may not be fully committed to it. Anyone advising the digging of a trench or some such act to try to keep a permission alive should bear this decision in mind.
Those developers keen to secure planning permission as smoothly as possible by making generous offers of planning gain to the planning authority will in future need to proceed with extreme caution and ensure that the test of reasonableness in Circular 22/83 — Planning Gain, is observed following the High Court decision in Safeway Properties Ltd v Secretary of State for the Environment [0] 3 PLR 87. In this case the amount of planning gain offered was considered by the inspector to have been excessive when considered against the test of reasonableness and did not arise wholly or substantially from the proposed development. Consequently he felt that he could not take the offer of planning gain into consideration in assessing the merits of the appeal which he dismissed. On appeal to the High Court Otton J held that the inspector’s reasoning could not be faulted. Developers should be wary of approaching the planning authority with an open chequebook and authorities will themselves need to be cautious about accepting offers of planning gain.
With the Planning and Compensation Bill currently before Parliament, it looks very much as if 1991 will bring many more important changes to the planning system. For those involved in planning and property development it will be necessary for them to constantly monitor these changes as never before. If the increased penalties proposed in the Bill come about then developers will need to treat the planning system with more care and respect than has hitherto been the case. Local planning authorities, on the other hand, will find themselves blessed with new and greater powers to resist unacceptable developments and to curb breaches of planning control. Next year’s review is already beginning to take shape!
*Cambridge City Council v Secretary of State for the Environment [1] 09 EG 119
*The House of Lords allowed the appeal against the decision of the Court of Appeal, February 28, 1991: reported at [1] 1 WLR 153.
Martin Edwards is a partner with City solicitors Alsop Wilkinson.
Andrew McCafferty is an associate with Strutt & Parker.
