Retrospective applications

Simon Fairlie chapter7 at
Fri Sep 11 13:57:35 BST 2015

Planning Magazine comments on the government's advice that moving  
onto land before applying for permission should weigh against the  
granting of permission.
Effectively this means that someone who hasn't got anywhere else to  
live is less likely to be given permission than someone who has got  
somewhere else to live.

How a new policy on rogue development could affect planners
11 September 2015 by Jim Dunton , Be the First to Comment

Experts have questioned the practicalities of tightened rules that  
allow an individual's intention to carry out unauthorised development  
to be a material consideration in determining any subsequent planning  

DCLG chief planner Steve Quartermain

In his first letter to chief planning officers following the May  
general election, Department for Communities and Local Government  
(DCLG) chief planner Steve Quartermain set out revisions to national  
planning policy that would make intentional unauthorised development  
a material consideration. The note, which said the policy would come  
into effect from 1 September, made specific reference to the  
"expensive and time-consuming enforcement action" that unauthorised  
development often prompts.

As well as allowing officers and planning inspectors to give weight  
to a deliberate intention to flout planning rules in deciding a  
retrospective planning application, the letter also set out a policy  
suggesting that "personal circumstances and unmet need" are unlikely  
to outweigh harm to the green belt when weighing up whether  
exceptional circumstances apply. Quartermain's note added that  
communities secretary Greg Clark would consider recovering a  
proportion of relevant green belt appeals to "illustrate how he would  
like his policy to apply in practice". The letter said the policy  
"applies to all new planning applications and appeals received from  
31 August 2015".

More than one commentator told Planning that they believe that  
intentional unauthorised development is being made a material  
consideration primarily to deal with unauthorised traveller and Gypsy  
development in the green belt. Quartermain sent the letter a day  
after the government published a policy document that redefines  
"traveller" in planning terms to exclude those who no longer travel  
permanently (see News Analysis, p10).

However, the policies, which Quartermain's letter said would "also be  
laid in the house as a written ministerial statement when parliament  
returns in the autumn", have been questioned by planning enforcement  
experts, who believe that it is unlikely that they will save money,  
reduce the need for enforcement action or affect how councils and  
inspectors decide planning applications.

Izindi Visagie, founder of planning enforcement law firm Ivy Legal,  
said the proposed policy did not seem to take account of the fact  
that development management and planning enforcement are different  
processes, and it could increase burdens on councils. "This won't  
remove the need for enforcement," she said. "It's almost designed to  
punish those who carry out intentional unauthorised development. But  
if that is a material consideration, does that mean that permission  
won't be granted? Inspectors can say 'yes' or 'no' to an application  
on its merits, but they can't authorise enforcement."

She added that councils could come under more pressure to take  
enforcement action where an inspector decides that unauthorised  
development has been intentional. Visagie said ultimately questions  
over degrees of intent and the weight they should be given would have  
to be a judgement for local planning authorities and inspectors.

Dave Westhead, chair of the National Association for Planning  
Enforcement, said enforcement officers could struggle to prove that  
someone intentionally commenced an unauthorised development unless  
they admitted to it or continued with it after being warned that it  
was unacceptable. He said another possibility could be to take a  
developer's history into account in determining their intention, but  
added that this would go against the principle of deciding  
applications on their own merits. "I do not see how a developer's  
intention can be a material planning consideration at application  
stage," he said. "The application will be determined on its merits  
and if it meets policy tests permission will be granted; if not it  
will be refused. The same issue will arise in any appeal."

Westhead also questioned the suggestion in Quartermain's letter that  
the new policy could counter the expense of current enforcement work.  
"This new material consideration will not shorten or reduce the cost  
of the investigation one little bit," he said. "It is more likely to  
add to the cost and time. You've still got to find out whether you've  
got a breach of planning control. This is no substitute for properly  
resourced enforcement teams taking early action when problems arise."

Planning silk Richard Harwood QC, of 39 Essex Chambers, was more  
sanguine about the policies and said the package's main benefits may  
be preventative. "What it's aimed at is discouraging people from  
thinking that they're helping themselves by not getting planning  
permission," he said. "That would reduce the amount of enforcement  
work and resulting sagas, which we've seen go on for a while."  
Harwood said the guidance seemed to give councils more ammunition to  
refuse applications following rogue demolitions, such as community  
pubs earmarked for new housing schemes.

A DCLG spokeswoman confirmed that ministers believe that the new  
policy will have a preventative effect once its application is seen  
in practice. "When people deliberately go ahead and build something  
that is intentional unauthorised development, they have obviously  
ignored planning permission," she said. "When they go for  
retrospective permission, it might count against them."

Simon Fairlie
Monkton Wyld Court
01297 561359

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