After an initial welcome from the business community, the Government's proposals for a massive overhaul of the planning system are being met with scepticism and disappointment among planning lawyers.
The planning green paper published last December has generated uncertainty about fundamental issues. For example, whether the new local development frameworks (LDFs) proposed as a replacement for the current system of plans would be subject to public inquiries. There are also concerns that either the new frameworks will be so bland that they will remove certainty and lead back to a 1980s process of planning by appeal, or strategic development decisions will be made by unelected regional or subregional bodies without proper scrutiny.
The paper reflects the Government's determination to cut back lawyers' roles in the planning process, but solicitors and barristers to developers and local authorities are already identifying new and augmented roles for themselves, not least because of the increased burden that will fall on in-house local authority lawyers.
Claimant lawyers will continue to lobby for a third party right of appeal, which the paper rejects, and are warning of the danger of the Government's recommended changes to decision-making for projects of national interest.
Private practice lawyers
Rowe & Maw environment partner Michael Hutchinson expects a further increase in the role of lawyers as project managers rather than pure legal advisers. The Government wants to put a greater burden on developers at the pre-application stage, including an obligation to consult third parties. “Lawyers will be brought in at a much earlier stage,” said Hutchinson.
The proposed LDFs could also lead to greater input from lawyers. Lovells planning head Michael Gallimore said: “You'll be judging development proposals against much more vague policies, so there could be greater scope for developers to take sites to appeal.”
Another green-paper proposal is to cut the time applicants have to decide whether to appeal against a local planning authority decision from six months to just three. Gallimore said: “It will put pressure on [lawyers] to advise at an earlier stage on the prospects of appeal.”
Hutchinson feels the paper should have gone much further in offering solutions to the problem of enforcement, which is essentially a resources issue. Criminalising planning breaches is one suggestion, although it has been rejected before and Hutchinson does not see this element of the green paper making it on to the statute book.
Planning barrister Morag Ellis of 2-3 Gray's Inn Square shares the view that the green paper could lead back to a 1980s process of planning by appeal. She said: “Proposals will have to be sorted out on a case-by-case basis. That won't speed up the system, or reduce costs.
“If we return to planning by appeal – which was supposed to be finished by the 1991 reforms – that's where lawyers will be looking to make up for the work they lose out on through the changes to development plans.”
The Government appears adamant that lawyers should be taken out of the development plan process. But even if the current plan system is replaced with district-level LDFs, Ellis believes lawyers will still have some role to play. “The clear objective is to keep lawyers out of that, but I would be very surprised if local authorities embark on it without taking legal advice.”
Ellis believes that the pressure on local authorities to improve the planning process will lead to increased need for external advisers. “Lots of local authorities have been downsizing in terms of planning solicitors. They'll have to review that,” she said. “I often advise local authorities on something problematic, such as the drafting of a committee report if people are nervous about the possibility of a judicial review. I can see that increasing.”
Ellis would like to have seen the Government make a greater commitment to more efficient delivery of planning decisions at a national level.
With local councils at the front line of planning, their in-house lawyers will not have taken the paper's criticisms of the process lightly.
On the call for greater speed, in-house solicitor Noreen Sutton of Westminster City Council said: “We already have the eight-week determination period, which is a pressure. Where each side is acting reasonably it's fine, but each case is so different. Sometimes local authorities need more information, or better detailed drawings [from the developer] and they don't come in.”
Sutton is concerned about having a standardised approach to planning obligation. She said: “I think it'll be very difficult to produce a standard Section 106 pro forma for each and every local planning developer and authority. I think it's unrealistic and it could be dangerous as you can become glazed over by a standard set of clauses.”
But Sutton welcomes the paper's proposed abolition of twin-tracking, whereby developers submit two applications for the same scheme to maximise their chances of success. “We have to start preparing for public inquiries on one scheme, even though we're still negotiating with the developer on a second identical scheme. That causes major abortive work,” she said.
For Susan Ring of niche claimant firm Richard Buxton, the paper offers some encouragement, but is marred by major disappointments.
She welcomes the proposal that local authorities must give reasons for granting planning consent, as well as refusing it. This would also apply to call-in decisions. Such a change would give Ring and the communities she acts for much more to latch on to, helping them to decide whether or not to bring a judicial review.
The prospect of a synchronised approach by the Environment Agency and local authorities would also benefit Ring's clients in the case of developments which may cause pollution. At present, communities do not know which part to challenge, the application to the Environment Agency or to the local planning authority.
The paper's rejection of a third-party right of appeal is disappointing for Ring. Neither does the paper go far enough in proposing ways for communities to gain better access to planning documents. Communities can face charges of £100 for copies of planning applications or traffic impact assessments and they are often denied access to plans because they have been copyrighted. This jeopordises the chances of issuing court proceedings to challenge a decision as unlawful, for which there is a fixed six-week time limit.
Also of particular concern is the proposal that decisions on projects of national interest will be made first by Parliament. Ring sees this as a Government tactic for avoiding environmental impact assessment (EIA) in order to push through schemes such as airports. She warned that the Government is not above the European directive on EIAs.