John Martin and Martin Edwards look back at this year’s key developments in planning law and forward to what lies ahead in election year
As the year draws to a close it is time to reflect on the themes and developments that emerged during 2014 and to look to what next year may bring. Of course, next year is general election year. What will make 2015 more interesting than most is the fact that it is almost impossible to predict the outcome of the election. This is partly because the three-party system appears to be breaking down in the face of almost unprecedented public dissatisfaction with a political class that seems increasingly out of touch with public opinion. Added to this is the fact that the economic recovery is looking fragile as the eurozone appears to be running into the sand and other economies around the world are showing signs of slowing down.
Interestingly, these factors have featured in a number of this year’s most significant themes. More than ever 2014 has emphasised the political context in which the planning system operates. For example, it has long been a bugbear of the political class that the planning system acts as a brake on economic growth. This is not a new phenomenon, even if the supporting evidence is notably absent. It was certainly an obsession of the first Thatcher government and has most recently manifested itself in the Growth and Infrastructure Act 2013 and a number of controversial changes to permitted development rights and use classes.
Judicial and political dimensions
From a planning lawyer’s perspective, the most significant change has been the establishment of the Planning Court on 6 April 2014. This is something that we have argued for in this column over the years and is to be welcomed. However, it is not without concern.
First, it is undoubtedly the case that legal challenges to planning decisions are now being handled by the High Court with greater speed than before, but if the case then goes to appeal, the benefits are diminished as it meets the inevitably slower pace of the Court of Appeal.
Second, there is anecdotal evidence that fewer cases are succeeding under this new regime. If the Planning Court is seen as a forum where most challenges are unsuccessful, it may undermine public trust in the impartiality of the courts as they may be seen as being just another facet of an out-of-touch political class.
Ill-founded legal challenges should, of course, be rejected as quickly as possible but not at the expense of cases where the issues are not so clear cut. It will be interesting to see if this situation changes, for better or worse, in 2015.
In our column of 15 February 2014 we highlighted two cases where the political dimension was readily apparent. We viewed the first of those cases, R (on the application of Gleeson Developments Ltd) v Secretary of State for Communities and Local Government [2013] EWHC 3166 (Admin) with some concern. Thankfully that decision was overturned by the Court of Appeal: [2014] EWCA Civ 1118. However, the potential for politics to influence the outcome of planning decisions has never been more open.
A quick glance at the DCLG website shows that increasingly the secretary of state is overturning inspector’s recommendations to allow appeals in relation to wind turbines and travellers’ sites. It was not long ago that renewable energy projects were viewed by central government as highly desirable. Once the voters of middle England began to protest, that attitude changed. It is hard to avoid the conclusion that minsters are pandering to the voters with an eye on the next election rather than taking a more long-term view. To be fair, more often than not the local planning authority refuses permission for similar reasons. Whatever the motive, it is making renewable energy promoters reluctant to invest.
The housing conundrum
Curiously, one area where central government appears to be prepared to upset the voters is with regard to housing development. Its approach seems at odds with the concept of localism. But this may not be as contradictory as it first appears, as we observed in EG, 11 May 2013, p89. All parties now appear to accept that the nation faces a chronic housing shortage.
Over the years we have constantly highlighted this and it was only the economic downturn that temporarily removed the issue from the public gaze. The recent upturn in the housing market has thrown the spotlight on this issue once again and with it the competing agendas of central and local government. At the moment, much to the disapproval of local voters, central government continues to stress the importance of the five-year housing land supply requirement of paragraph 49 of the National Planning Policy Framework. The secretary of state has been consistent in emphasising this in many decisions this year. However, as we approach a general election, where such local disapproval could prove to be crucial to the outcome, will national politicians change their tune to be more in harmony with local voters?
It may once have been possible for the three main parties to agree a sort of collective approach to this issue, but with four or five parties now competing for votes this would seem unlikely.
An uncertain outcome
Who knows what the outcome of the election will be, but this year’s themes suggest that the planning system is in danger of becoming the focus of public resentment of the political class. Judges and politicians alike will need to tread carefully but there is one thing that we feel we can predict with certainty: 2015 will be a year of uncertainty.
John Martin is a planning law consultant and Martin Edwards is a specialist planning barrister: martinedwardsplanninglaw.com
