Posts

Showing posts from July, 2018

PREVIOUS DECISION LETTERS & PLANNING APPEALS

Image
The Use of Inspectors' Decision Letters in Planning Appeals Those involved in planning appeals often produce the decision letters of planning inspectors to bolster their cases.   The argument being, of course, that the previous decision is similar to the one in front of the Inspector and should, therefore, be taken into account.   However, the Inspector will often say “Each case on its merits” and place little weight on the decision letter which the party thought to clinch the deal. I many cases, this is because the person producing the decision letter has failed to do enough work. Had he done so, then the Inspector might have placed more weight on the cited decision letter. Here is a quote from an Inspector in a recent decision letter: “13. I acknowledge that the appellant has also referred to various successful appeal decisions where lawful development certificates for extended gardens have been granted.   However I have been provided with limited information regarding

THE ADVANCE PAYMENTS CODE & THE 'SIX WEEK RULE'

I have found that many delegates from highway authorities are worried about the consequences of missing the six week deadline for the service of APC notices. This article considers that topic. The "advance payments code" The “advance payments code” (“APC”) means the code provided by sections 219 to 225 of the Highways Act 1980: Section 203(1).   The APC has effect for securing payment of the expenses of the execution of street works in private streets adjacent to new buildings: Section 204(2). The APC ensures that a sum equivalent to the likely costs of making up the private street is paid to the highway authority or secured before a new building is erected.   The objective of the exercise being to put the highway authority in the position of being able to step in and carry out the street works in the event that the developer fails to do so. A developer is not entitled to commence work (unless the works are exempted) on a building served by the st

A PROBLEM WITH SECTION 278 AGREEMENTS

When is a Section 278 Agreement not a Section 278 Agreement? The short answer to this question is when it has nothing to do with Section 278 of the Highways Act 1980 at all. Truth be told, many agreements relating to the carrying out of works on the highway are labelled as being “Section 278 Agreements” when an examination of their terms would show that Section 278 is not relevant to the transaction and should not have been cited. This is not just a matter of incorrect labelling because, when it comes to drafting legal documents, it is of the utmost important that one understands the words one is using. The need for a highways agreement If a developer needs to carry out works to the highway[1], then he will need to enter into an agreement with the highway authority to enable him to do so. It will often be the case that the developer’s planning permission is subject to a  ‘Grampian’ type condition which precludes the commencement of the development unless and until the high

PLANNING ENFORCEMENT APPEALS: A CASE FOR CASE MANAGEMENT ?

Nullity arguments and the appeal process Those opposing an enforcement notice sometimes question  its validity and argue that it a nullity.  This raises a set of unusual problems and it is questionable whether the Planning Inspectorate proceeds by tired conventional wisdoms rather than coming to grips with the matter. This article questions both the legal basis for an award of costs in cases where the validity of an enforcement notice is in issue and asks why the Planning Inspectorate allows any appeal to go to as far as a public inquiry before deciding whether it had the jurisdiction to entertain the appeal at all.  There are a number of reported inspectors’ decisions which raise the points which are of concern, but it will suffice to refer to one case by way of illustration. In APP/D3315/C/15/3141203 (Land at Walford Cross Units, Walford Cross, Taunton, Somerset TA2 8QP), the Inspector held that an enforcement notice was a nullity. She then went on to make an award of costs aga

SECTION 106 AGREEMENTS AND MANAGEMENT COMPANIES

Planning Authorities and the Avoidance of "Fleeceholding" Many section 106 agreements rely on private management companies to provide and maintain common infrastructure in development schemes, but this approach is not without its own problems It is sometimes proposed that the estate roads on a new development will not become highways maintainable at public expense; indeed, sometimes they will not become highways at all.   Likewise, it might be the case that public open spaces, on-site drainage and structural landscaping will not be adopted by any public authority. One of the matters which must then be considered by the local planning authority is that of the future maintenance of these common parts.   Given that the local highway authority will have statutory duties in respect of new roads, one would anticipate that they will engage a similar exercise. If it is proposed that common parts are to be privately maintained, then the arrangement chosen by the de

CERTIFICATES OF LAWFULNESS & THE MATTER OF EVIDENCE

Statutory Declarations & Certificates of Lawfulness Planning practitioners often need to seek certificates of lawfulness in order to perfect the planning title to their clients' site.  This means that they need to provide the right evidence in the right format, and this is not without its pitfalls. In his widely read blog, Martin Goodall once said that the current national advice on the determination of certificates of lawfulness is woeful when compared to that provided in the now revoked Circular 10/97: See ‘ Useless new planning guidance ’, 7 March 2014 ( http://planninglawblog.blogspot.com/2014/03/useless-new-planning-guidance.html ).  In particular, he noted that the reference to the important case of F W Gabbitas v SSE and Newham LBC [1985] JPL 630 was removed in the cut & paste (my words) which led to the “National Planning Practice Guidance” (NPPG). This was previously summarised in paragraph 8.15 of Annex 8 to Circular 10/97. One may wonder whethe