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20/03/2015

Planning's laws of unintended consequences

Martin Edwards

One law that politicans can never repeal, yet frequently ignore, is the law of unintended consequences, says Micheal Edwards of Cornerstone Barristers

Despite this, legislative and policy reforms increasingly create more problems than they solve. Planning is no stranger to this. For the first 50 years or so, the planning system was subject to gradual refinement, and the Planning and Compensation Act 1991 was the last great example of sensible, well thought-through reforms that by and large worked well.

In the past 10 years, however, the system has been subjected to an almost continuous flood of ill-considered changes that have left planners and lawyers to wade through a legislative quagmire. Planning policy has also been through a massive upheaval.

But to the relief of many, the seemingly ever-expanding body of national policy has been swept aside by the NPPF. Although brevity is a virtue, it sometimes introduces new areas of uncertainty. It is no surprise, therefore, that the courts increasingly have to step in to fill the gaps.

As an example, let’s take the Planning and Compulsory Purchase Act 2004 and the changes it brought to the development plan system. In the foreword to a book on the act that I co-wrote, Mr Justice Sullivan began: “‘Wait till it ain’t broke any longer, then fix it’ appears to be the rationale underlying the latest changes to the development plan system contained in the Planning and Compensation Act 2004.”

How right he was. The act’s promoters said that the new system would be up and running in three years. Ten years later and local authorities are a long way off fulfilling that politicians’ pipe dream. Worse still, the policy requirement in paragraph 49 of the NPPF has left impotent at planning inquiries those authorities unable to demonstrate a five-year housing land supply.

But it is not just planning authorities that suffer. One very sensible reform contained in the Growth and Infrastructure Act 2013 was the introduction of “trigger” and “terminating” events in relation to village green applications. It seems a reasonable balance was struck between opposing interests. However, it sits awkwardly with the advice in paragraphs 188 and 189 of the NPPF, which urges early engagement with the local community.

Sometimes, if that advice is followed, it alerts objectors to the fact that a planning application is in the offing so they get the village green application in first and neutralise the effect of this reform.

"The simple introduction of the word 'sustainable' has created a whole host of new problems"

Occasionally the simplest of changes can have a profound effect. The return of a presumption in favour of development was widely welcomed. The presumption had existed in one form or another up until 2004. However, the NPPF casts this presumption in a slightly different format by framing it as a presumption in favour of sustainable development.

The simple introduction of the word ‘sustainable’ has created a whole host of new problems. Apart from the fact that it seems impossible to come up with a handy working definition of ‘sustainable development’, the way that the NPPF tackles the issue has created such confusion that it has already led to two High Court cases.

The first, William Davis Ltd v Secretary of State for Communities & Local Government [2014] EWHC 3058 inadvertently led some inspectors to adopt a formulaic sequential approach of the type specifically disavowed by the secretary of state in paragraph 12 of his decision letter of 2 July 2014 in relation to appeals at Droitwich Spa (Ref: APP/H1840/A/13/2199085 and APP/H1840/A/13/2199426) and where he relied upon the subsequent decision of Mrs Justice Patterson in Dartford Borough Council v Secretary of State for Communities and Local Government and Landhold Capital Limited [2014] EWHC 2636.

So this simple word led to significant confusion. As we enter the febrile run-up to the general election will it be too much to hope that any policies aimed at further reform of the planning system will be adequately thought through, realistic and workable? Past experience suggest that this may prove that hope to be in vain, irrespective of whoever wins.

Martin Edwards is a planning and environmental lawyer with Cornerstone Barristers

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