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Practical planning advice

We look at the possible rejuvenation of compulsory purchase, a threat to tree preservation orders, and irrational planning decisions

Compulsory purchase to make a comeback?

After a few false starts, the government's stance on the provision of new housing is beginning to become clear. First there is the commitment to target 60 per cent of new houses on 'brownfield' sites, 75 per cent if possible. (How this will ever be measured, let alone achieved, seems to be in the hands of Richard Rogers).

Then there is the 'sequential approach', whereby an out-of-town scheme should only be approved if the applicant can demonstrate that there is no suitable site in the town centre or, failing that, on the edge of the town. Easily extended to cinemas and business parks, this principle now is to apply to housing, in particular to the allocation of housing sites in local development plans.

And the obvious workaround - formulation of a scheme so large that it could only be on a 'greenfield' site - won't work.

A recent case of a big multiplex cinema was turned down on appeal even though there was no central site for it, on the grounds that it did not need to be so big!

These principles will be applied within the new hierarchy of plans which will take on the principle of 'subsidiarity' (readers may need a new glossary and an updated spell-checker for all this jargon) which I described in my last column 1.Under this scheme a policy of 'plan, monitor and manage' will replace the old 'predict and provide' for household and population projections. Further, Whitehall is to hand what looks like an intractable problem on its new regional decision-making bodies to incorporate into their plans, further distancing national projections from local realities.

This demotion of the trend projections is said to be justified for housing because it has worked for roads - authorities no longer project traffic growth, build the roads for it and then along comes the traffic. Now they build hardly anything and the Treasury saves lots of money. There is a basic difference, however. Most of the population expected to form households in the next two decades has already been born.

Worse, the net inward migration element of the 1991-2016 projection which said that 4.4 million more homes would be needed in England is severely underestimated. This year's 1996-2021 projection will adjust this upward from 50,000 pa dropping to zero by 2011, to something like 65,000 pa to 2021. Last year's actual figure was over 120,000. Expect the 4.4 million to go to 5.5 or 6.6. No wonder the government wants to shift the focus of attention, not to say the genuine difficulty of resolving the conflicts in allocating land for new housing.

But in the end central government has to take a firm line with the regions or they will find lots of reasons for falling short in fulfilling their proportion of national need. Similarly, the sequential test approach treats land as a homogeneous commodity, like sugar or beans. The reality is that most developments are initiated by the owner of the particular site whose ambition or aspiration is hardly met by a response which tells him that some other location in the town centre could provide the five houses he wants to build, so therefore he can't.

The logical consequence - and not just for housing - is to rejuvenate compulsory purchase and to streamline its historically cumbersome mechanisms, so that the adopted plan can identify specific sites for specific developments and the planning authority then has the means of making it happen - though one hopes with private-sector money maintaining some market realism.

This is just what the government's Property Advisory Group is suggesting in its latest report 2. Setting out the principles for sustainable development for the commercial property industry, it argues that 'it is now necessary to be much more proactive in using compulsory purchase powers' for assembling sites in the interests of the community and improving accessibility.

The group recommends that the planled system is necessary for the use of compulsory purchase powers to identify areas for development and urges a major review of the complex CPO procedures together with the consolidation of legislation.

It also suggests alternative sources of financing: levies on property and/ or on transport users, a development tax on greenfield sites, direct charges for road users and control over private parking - all to be hypothecated (ring-fenced) for investment in improved infrastructure.

None of this is policy, yet, and the ministerial introduction to the report merely undertakes to consider the recommendations in the course of various policy reviews. But the logic will not escape the government whatever the ultimate political analysis. Perhaps we can look forward to a sort of PFI CPO system.

Tree preservation orders and hidden agreements Authorities can sabotage the ambitions of developers if they believe some good trees might be threatened, by simply issuing an area tree preservation order. In a recent case of mine, diligent enquiries of Barnet planners confirmed in writing that no trees on the site were the subject of a TPO.

Within days of my client's purchase going through, an area TPO was slapped on the site next to Hampstead Heath. The site being sold belonged to Camden, although it was within Barnet, and Camden and Barnet do not issue TPOs on each other's sites. Once ownership changed Barnet took protective action, but neither borough advised the prospective purchaser of this 'arrangement'. It was then a long haul to carry out a detailed tree survey and then to agree on the revocation of the area order in favour of TPOs for described trees.

In 1994 the government proposed to abolish area orders and to allow five years to phase out existing ones. The DETR is still contemplating this, even though the large number of areas covered by orders could not be surveyed, revoked and replaced in as little as five years. As the recent countryside march might bring unwelcome attention to such a change, it may not surface for a while. Meanwhile remind your client that just because there are no TPOs on a site, it doesn't mean that a blanket preservation order cannot be slapped on it at short notice, especially if the site is being bought from a local authority!

Reasons to say yes If a client is aggrieved by a planning authority's decision to grant planning permission to someone - a competitor perhaps, or an apparent contradiction where permission was refused on a comparable site - you might assume that the authority has to give its reasons for granting the consent. This is not so. Where, for example, the officers recommend refusal but the committee overturns them, there is no obligation for reasons to be given. This was held in a case in 1996 3 now upheld by the Court of Appeal. The appeal judge found that 'such an obligation is conspicuously absent from the statute', contrasting with the obligation on a planning inspector to make a statement of reasons for his decision and with the obligation on an authority to give reasons for a refusal.

While the courts are careful to acknowledge the limits of their role in overseeing the application of policy by local planning authorities, they can recognise the irrational planning committee. In a recent case 4 the High Court quashed a decision by a planning subcommittee to grant permission. The council had earlier that year granted consent, subject to a section 106 legal agreement, to improvements to a traffic junction. But a few months later it granted the consent without this requirement and the court considered that the committee's failure to obtain evidence about the effect of an increase in traffic resulting from the development fatally flawed its decision, making it unreasonable.

Footnotes

1 The Architects' Journal, 12.2.98, p56

2 'Sustainable development and the Commercial Property Sector' in the January Bulletin of the Encyclopaedia of Planning Law and Practice, Sweet & Maxwell.

3 R v Aylesbury Vale District Council, ex p Chaplin July 1996.

4 R v Newbury District Council, ex p Blackwell, October 1997.

Brian Waters is principal of the Boisot Waters Cohen Partnership, tel 0171 828 6555

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