Well, we are six weeks into Covid-19 “lockdown” and now into May. The time is certainly passing faster than I thought it would. I had a couple of quieter weeks the week before last which were actually useful to deal with year end accounts, paperwork and generally re-set/get organised. The last week has, however, brought with it a surge in enquiries and new jobs which I think is a positive sign – people are trying to find a way to progress matters despite the current climate!
The planning system is, genuinely, moving well and virtual planning committees seem to be working for all involved allowing applications to be progressed above delegated level. This is a great relief as I am sure many were concerned that social distancing would cause a back log in that respect. The Planning Inspectorate is likely to have a small backlog going forward but are well set up to catch up with this in the coming months (indeed, as they did last year after taking on more Inspectors). They are also about to host their first digital hearing!
Last week I “attended” a case law update online. Those of you who know me will know I do love a case law update. I have recently posted, in the #60topicsin60seconds on Linkedin, about the importance of Section 38(6) of the Planning and Compulsory Purchase Act 2004. That is that the starting point for the determination of an application is the Local Plan unless material considerations indicate otherwise. If a Local Plan is up to date – it is not a tilted balance exercise. Some key case law (housing based) is reiterating this:
• Gladman Developments Ltd v Canterbury City Council [2019] EWCA Civ 669. Essentially –the Court of Appeal confirmed that the Local Plan contained a spatial vision for the delivery of housing in the area with a clear hierarchy of acceptable locations. Housing development in locations other than those identified in the policies could not be said to accord with the Plan.
Tiled Balance key case:
• Gladman Developments Ltd v SSHCLG [2020] EWHC 518 (Admin). Essentially concludes three different triggers in paragraph 11 (d) (ii) of the Framework. Within the same paragraph 5YHLS only deems certain policies out-of-date, whether they are substantially so and the weight to give to them is another matter. Most importantly – compliance with, or lack of compliance with, the Local Plan policies is relevant in assessing whether adverse impacts would significantly and demonstrably outweigh the benefit under paragraph 11 (d) (ii).
One of the key pieces of case law which I also quite like is Monkhill Ltd v SSHCLG [2019] EWHC 1993 (Admin). It virtually offers a practical summary which may assist “professionals in the field”. It is clear that you should start with the development plan. If it accords with, and the development plan is up to date, consent should be granted. If there are no relevant policies or they are out-of-date then paragraph 11 (d) (tiled balance) is applied in the absence of no footnote 6 policies. If a footnote 6 policy provides a clear reason for refusal, permission should be refused. If it does not, apply 11 (d)(ii) tilted balance and section 38(6).
So, what is my point? My point is that as applicants and advisors the Local Plan is your starting point. There seems to be a strong trend of agents trying to lever development into the tilted balance and these are failing. Those in the tilted balance are not as successful, mainly because the easier sites have come through already.
Having seen, in the last couple of weeks, some appraisals done by other professionals (which were sent to me to be checked) I think it is worth reiterating that you cannot just “pick” the bits of policy that you wish to apply and argue there is no harm if a proposal is clearly contrary to a Local Plan. There is no such thing as a precedent. Each case is considered on its own merits. Applications need to be considered, and prepared, methodically as set out in line with case law and legislation.
It means that yes, some schemes just do not have legs at the moment but that is not to say that the system won’t change and now has never been a better time to keep up to date for the benefit of our clients. A slight change or policy review could change something, and it is up to us to advise correctly at that time and manage understanding and expectation…