Now is the time of year that people traditionally take stock of the year that was and cast their eye towards what might be coming in the new year.
For planning lawyers there have been a lot of changes, not only with new legislation coming in but with changes to existing rules and legislation and old(er) legislation coming to the fore in the planning sphere.
So at the risk of parallels being drawn with Scrooge, I want to talk about “ghosts” of legislation old, new and present (tweaked) in my final blog of 2013.
At the risk of sounding like a broken record, this topic was covered by Steven, to much interest and debate, at our Autumn planning seminars. The ambit of PoCA is to deprive defendants of the benefit they have gained from relevant criminal conduct. In planning matters, relevant criminal conduct arises in several scenarios but perhaps the most common are a failure to comply with Enforcement Notice and a failure to comply with Breach of Condition Notice. The watershed moment (in planning anyway) was in 2010 when the Court of Appeal ruled in the case of Basso and another v Brent LBC that PoCA does have teeth in the planning world. Since then we have seen a case in the last year where a confiscation order of £1.438m was made to the local planning authority following the breach of various enforcement notices by an individual. Teeth indeed.
The front-runners of these sort of applications seem to be the London Boroughs and the recent successes of Hownslow LBC and Brent LBC is likely to embolden other local authorities. Some of our clients have been on the wrong end of these applications but Steven does deserve a special mention (and congratulations) for successfully defending, on behalf of a client, a PoCA application by Brent LBC. That said, I would caution against anyone ignoring an Enforcement Notice to the point that Criminal proceedings are issued.
Ignore the lengthy title, the CPR remains the backbone of civil court procedure and one which (if you felt inclined to ask) our contentious lawyers could bore you to death with(!). However, the amendment came into force on 1 July 2013 and requires the claim form for an application for Judicial Review relating to a planning decision to be filed within six weeks from the date when grounds for the application first arose. This is a reduction from the previous time limit of three months.
The effect of this is obvious; if a planning decision (on appeal) doesn’t go your way then you need to act fast if you want it reviewed. The rules still require a “pre-action” letter to be sent giving a reasonable period of time for a response. The time pressure on the parties (it does cut both ways) has clearly been intensified and as an indication we had a recent instruction on Friday 13th December whereby the decision to be reviewed was dated 8th November 2013 – making the deadline for applying for Judicial Review 20th December 2013. I know that Michael was very pleased in getting the pre-action letter out the same day (13 December) and, when the response didn’t come in by the requested time, finalising the application and lodging it at Court on 19 December. Michael even found time to personally serve the stamped application on the Secretary of State on his way back to the office(!).
In our example the pre-action letter had made it clear that a protective application would be made in default of a response by the required date – I think that this will be a common scenario. Therefore, reducing the time-limit to 6 weeks may not necessarily reduce the number of applications for Judicial Review (as I assume government had hoped) but it certainly increases the time-pressure for all. Appellants beware.
The GIA was brought in to much aplomb and has been the subject of my blogs previously. However, as time moves on and the “dust settles” it seems clearer to me that, at this moment in time, all the GIA has done is to act as a stick to encourage Local Planning Authorities to be sensible in negotiating section 106 agreements (not that I am convinced that the majority of authorities weren’t already taking a pragmatic approach). I know that Jo and Tom have been successfully dealing with a lot of s.106 agreements both pre- and post-GIA and they will tell you that they haven’t noticed a change in the approach taken by the local authorities we have dealings with post-GIA. Perhaps I could suggest that the GIA may encourage local authorities to be more “bullish” in asking for evidence of viability, and, perhaps it encourages developers to start negotiations on an “open book” basis. Goodwill to all?
The above is without reference to the other changes that we have seen, such as the requirement for conservation area consent abolished, changes to fees regulations, a “beta” web-based planning advice portal and no requirement to give reasons in making a grant of planning permission and so on. Next year we will see further changes and, we are told, the recovery will begin to pick up pace.
Looking back 2013, has been an interesting time for us planning lawyers but the team has had many successes in 2013 which I look forward to continuing into 2014 and beyond. I hope that readers of this blog also conclude that, on balance, 2013 was a good year. In the meantime, I wish you all a happy festive period and hope that 2014 brings much health, happiness and success.
A Mackman Group collaboration - market research by Mackman Research | website design by Mackman
