Planning & Environment

Happy first birthday to the new planning system! It hardly seems to be a year ago that we sat with the planning team and friends in All Bar One, Brodies’ Edinburgh Office local, to christen the new-born system (or possibly drown our sorrows).

After one year’s operation, it appears the new system has dramatically cut the number of oral* proceedings, whether inquiries or hearings, for planning appeals. Of 481 planning permission appeals submitted during the year, 12 hearing sessions have been set down of which five have actually taken place so far. Inquiry sessions have been set down in four cases, of which one has actually happened. The anecdotal evidence is that two reporters have been appearing at hearings – presumably because they are now required only in the most complex cases. Of course, the statistics have to be seen in context – the recession will have meant many fewer of the complex cases suitable for hearing or inquiry.

The other encroachment on the traditional planning appeal has been the local review body. Although there are plenty of anecdotes of rough justice, on the slim information we have so far it doesn’t look like the LRBs are producing results far different from those of the appeal system – about one third of reviews upheld. The LRB system remains relatively untested however because of the unwillingness of professional developers to rely on them.

So are the lawyers starving yet? I think it’s fair to say, one year on, that there’s still plenty to do, and I’ve certainly not been idling recently.

  • Developers still need advice, particularly given the interesting quirks thrown up by the new system. How many developers have run into difficulty because of the requirement for twelve-week pre-application consultation to extend permission for a major development? How many consents have been purported to be granted by local review bodies in a deemed refusal review later than two months after the application, despite the automatic refusal at two months?
  • The new appeals system involves an exchange of written submissions where a lawyer’s understanding of evidence and procedure is still key to success, especially since there may be no further procedure and the initial exchange (even the initial note of appeal) may be a one-shot opportunity.
  • The latest timetable says we will have the introduction of new-style planning obligations and good neighbour agreements to look forward to by the end of this year. Planning authorities will no doubt want any minded-to-grant decision subject to a chunky planning agreement finished off before the new provisions on modification or discharge of the new-style obligations come into effect.

The government is looking at how to tackle some of the teething problems, such as the requirement for pre-application consultation for relatively minor variations to major developments. However, only a patch can be expected. Apparently no new planning act is possible this side of a general election.

So, how’s it been for you? Let us know whether you’re now more positive (or negative) about planning’s Great Leap Forward one year on.

*irrelevant note: the DPEA in its guidance refers to “aural” proceedings rather than “oral” proceedings. My Latin friends tell me that “aural” comes from auris (genitive auris) an ear, while “oral” comes from os (genitive oris) a mouth. Since they’re both pronounced the same, I suppose the correct word depends on your point of view. But what does the DPEA’s use of “aural” say about how it views the reporter’s role?

Planning & Environment