Planning…with Slim Shady?

          “Look, if you had one shot, one opportunity

           To seize everything you ever wanted…one moment

           Would you capture it or just let it slip?”

                                                                                 – Eminem, “One Shot”

It seems that Marshall Mathers III has a remarkable degree of insight into the application of the Law of Unintended Consequences on one of the coming reforms under the Localism Act.  When brought into force section 123 of the Localism Act will introduce the brand-new s70C and amend sections 174 and 177 of the T&CPA to bring about reforms to retrospective planning permission.

All very well” I hear you say “but what has this got to do with Eminem?“.  Bear with me.

Section 70C will introduce a power to the LPA to decline to determine an application for permission if granting the application would (in whole or in part) constitute a grant of permission for any matter specified in a pre-existing enforcement notice.  A ‘pre-existing enforcement notice’ is one that has been issued before receipt of the application (note ‘issued’ not ‘effective’ or ‘appealed’).

This power to decline applications will be mirrored by amendments to sections 174 and 177 of the T&CPA.  The amended s174 (by inserting subsection 2A) will deny ground (a) from appellants in an appeal against an enforcement notice where the enforcement notice relates to development (in whole or in part) for which an application for permission has been refused by the LPA.

The amended form of s177 of the T&CPA will remove the ‘deemed application’ from any enforcement appeal in circumstances where the new s174(2A) (above) applies.

But why?  Well the Bob Neill told us that the objective was to tighten the rules where an abuse takes place with either the tandem or consecutive use of retrospective applications and appeals against notices (Hansard, Tuesday 1st March 2011, col. 725).

According to the Government (and I am not making this up) the sort of people who do this are ruthless and determined, and money is involved and LPAs are often frustrated or deterred as a result (Bob Neill again, Hansard, Tuesday 1st March 2011, col. 725).

Fine” you say “but still, why Dr Dre’s protégé?“.  Well, think about it.  In order to try and assist LPAs (no giggling please) the Government has brought about a position where a developer can either apply for permission or appeal an enforcement notice on ground (a) / the deemed application – but not both.

Don’t forget we’re dealing with ‘ruthless and determined’ developers where ‘money is involved’.  This is their one shot at permission, so you can be fairly certain they’ll apply whatever resources are commensurate with the importance of obtaining that permission.  Which the LPA will have to deal with all in one go.  So it’s a good thing that LPAs are not in any way strapped for cash, officer time or other resources and will be able to match whatever resources these ruthless developers pile into such applications…

So as a developer, the question as put by Slim Shady – if you had one shot, one opportunity to seize everything , would you capture it, or just let it slip?


About Scott Stemp
Planning, regulatory and environment barrister

6 Responses to Planning…with Slim Shady?

  1. John Clarke says:

    Scott. Regarding your views on Sect 70C. Do you think that the term pre-existing ‘enforcement notice’ includes a breach of condition notice (BCN) issued under Sect 187A T&CP Act 1990 (as ammended) ?. I’m not sure it is meant to as there is no appeal provision in relation to a BCN. But if it does there should aslo be no retro-applications accepted following the service of such a notice.

    • Scott Stemp says:

      Thanks for that John – interesting question. I think the reference in s70C to an “existing enforcement notice” is meant to be limited to an enforcement notice issued under s172 of the T&CPA and does not include a BCN under s187A.

      If you look at s171A of the T&CPA you’ll see that an enforcement notice is defined as being a notice issued under s172 T&CPA whereas the issue of either an enforcement notice or a BCN is defined as taking ‘enforcement action‘ – a subtle but important difference which in my view indicates the scope of s70C being limited to enforcement notices issued under s172.

  2. Sulla says:

    Well isn’t that ironic. A ‘Localism Act’ that incentivises developers to seek regularisation of unauthorised development through PINS instead of locally elected politicians. Ratepayers will love that one…

    • Scott Stemp says:

      Do I detect a hint of cynicism Sulla? Shocking. At least it’ll stimulate the economy through job creation, what with the need to appoint more Inspectors. But then localism was never really about locals, was it?

      Captain Pickles has shown quite how much regard he has for local viewpoints in his decisions (for example) on CERC (a 240,000 tonne p/a waste incinerator in Cornwall, vociferously opposed by locals but granted permission by Uncle Eric) or the radioactive waste disposal site near King’s Cliffe, Northamptonshire – again with massive local opposition but granted permission by…Cap’n Pickles.

      Entirely coincidentally, the Brentwood Bruiser himself campaigned AGAINST a waste facility in his own constituency on the basis that it would “open the doors for [his] county to become the waste dump for the south east“. Yes, much better to cart it all off to another constituency than your own, eh? But more power to local people!

  3. Sulla says:

    To be fair to Mr Pickles (if it is at all possible to stop thinking about how entertaining it would be to see him subjected to the water-boarding technique) he has decided not to call in the controversial Shepperton eco-park development in Surrey. The Surrey Advertiser reports that a letter from the Department for Communities and Local Government on Friday (2 December 2011) read: “The government is committed to give more power to councils and communities to make their own decisions on planning issues, and believes planning decisions should be made at the local level.” It added that Mr Pickles had “carefully considered the impact of the proposal” but found there was no conflict with national policy and that no significant architectural or urban design issues were apparent, among other comments. He has therefore decided “the application should be determined at local level and has not called it in.”

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