Pickles v Prescott – The New and Old Planning Systems

Pickles v Prescott – The New and Old Planning Systems

December 2011

By Paul Denholm - Senior Underwriter/Head of Planning Risk & Solicitor

The Localism Act received Royal Assent on 15 November 2011. The majority of the Act will come into force on a day of the government's choosing, and this will probably be 6 April 2012.

Some of the changes to be introduced under the Localism Act are:-

Regional Strategies - Power to Revoke

Pickles now have the power to make an order revoking the Regional Strategy planning policies championed by Prescott. He is mindful of the impact of EU laws and won't fancy another bout of judicial review applications, so before making the order, he is consulting first on the environmental implications of revoking these planning policies. Centre stage then, is Pickles. Unmistakably to the left is Prescott, who never did perform all that well in front of the cameras.

The new National Planning Policy Framework is still in draft, so over a year after Mr Pickles fired off his letter to Chief Planning Officers in which he started the process of scrapping Mr Prescott's Regional Strategies, they still have some life. Subject to the outcome of the above consultations (and any litigation which may follow), their time is short.

New Enforcement Powers

Authorities will have new powers to enforce against concealed breaches of planning control outside of the current limitation periods.

The current limitation periods serve to 'oil the wheels' of property transactions by reducing the need to undertake due diligence on planning breaches that benefit from the limitation periods.

Once the new provisions come into force, Authorities in England will gain powers to deal with breaches outside of the current limitation periods. This would require an application to the Magistrates Court for a "Planning Enforcement Order" which must be made within six months of evidence of the breach of planning control coming to the knowledge of the Authority. The Magistrates Court may make a "Planning Enforcement Order" if they are satisfied on the balance of probabilities that the breach, or any matters constituting it has (to any extent) been deliberately concealed by any person or persons.

Once a "Planning Enforcement Order" has been granted the Authority has a time frame referred to as an "enforcement year" within which to take enforcement action.

Authorities will also gain an express power to decline an application for retrospective consent made to address an enforcement notice.

Buyers will be concerned that a historic breach has occurred which is not apparent and may have been concealed from the local authority. This new power is likely to increase the need for due diligence on planning breaches and indemnity insurance, which can be obtained from First Title.

Pre-application Consultations

Many developers already undertake pre-application consultations before submitting a planning application.

The Localism Act will introduce a requirement for developers to undertake pre-application consultations where the planning application meets certain development thresholds.

Peter Andrew, who is Director - Land and Planning at Taylor Wimpey, has commented as follows in relation to these pre-application consultation requirements:

"Not properly consulting and engaging with communities will be at huge risk from Judicial Review - as well as there being increased scrutiny from the due process of committee and appeal."

Clearly this gives rise to the need to use appropriate experts to undertake and manage robust consultation programmes.

Legal indemnity insurance is also available from First Title against the risk of judicial challenge.

Undertaking extensive pre-application consultation may also flush out any number of other risks that the development may be exposed to, such as enforcement of restrictive covenants or applications for common/village green registration. Developers may wish to consider the advantages of having legal indemnity insurance in place, before commencing these pre-application consultations.

 

What now

Expert-to-expert, we will consider with you an appropriate legal indemnity insurance solution.

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