Not *that* and not *there* - when alternatives matter (and when they don’t)
Just think, friends: when I kicked this blog off in March, I was worried I’d run out of topics. Run out. Ha. What a thought. Heavens help us, even in the last week:
We finally closed the UK Holocaust Memorial inquiry (which had been rolling since the beginning of October). If you’re really interested, you can watch my closings here and read them here. As will become obvious, I’ve never done a case like it before and almost certainly never will again. Appearing at that inquiry in support of such a remarkable scheme has - to get serious for just 1/2 a sentence here - been the privelege of my professional life.
The Divisional Court dismissed the legal challenge against Class E and the recent permitted development rights: judgment here. In a nutshell, the Court decided that no strategic environmental assessment was required for the new changes as they aren’t "a plan or programme setting the framework for future development consents". The Claimant’s going to have a pop at persuading the Court of Appeal to think again. But in the meantime, Class E - for my money, the single most important English planning reform for decades - is here to stay.
Sevenoaks lost its legal challenge on the duty to cooperate: judgment here. As I said back in April, every legal challenge based on a failure to apply the duty to cooperate properly has failed. Well, that streak continues. And all is not well over the border to the east, as Inspectors write to Tonbridge and Malling to express “serious concerns” on a number of “legal issues”. In St Albans in the Spring, a very similar letter turned out to be not very veiled code for a failure to comply with the duty to cooperate, so more trouble’s a-brewin’ in Kent.
Speaking of St Albans, they’re on the cusp of withdrawing their local plan after failing to comply with the duty to cooperate, if only they could persuade any members to attend meetings.
Yet more Secretary of State decisions over-turning their Inspectors: see Simon Ricketts’ tip top summary here which covers recent refusal (against the Inspector’s recommendation) for a major new scheme at Anglia Square in Norwich along with the approval (again against the Inspector’s recommendation) for a new road under Stonehenge.
Planning reform - remember that? Well, the new standard method for housing need which got everyone in such a flap is going to be “re-balanced” to focus on “urban areas”. A move which the Times Leader described like this:
“an algorithm designed to ensure that houses are built where people actually want to live will now be reformulated to ensure that they are built where Tory MPs think they should live, which is in big cities, ideally in the north.”
And the rest of it - well Dominic Cummings, wielder of the mighty axe of planning reform, has left Downing Street. What does that herald, if anything, for the future of the White Paper he helped create? Your guess is as good as mine. But one thing’s for sure. And that thing is… delay.
Why not take advantage of that little bit of delay, take a load off and join me for 2 minutes of good old-fashioned reform-free #Planoraks basics.
Let me tell you a story. You’ve heard something like it before. At the Holocaust Memorial inquiry, the objectors (not all, but most) agreed with the principle of there being a national memorial to the Holocaust. So far so good. But… they would say… it shouldn’t be this. Make it something more modest. Less conspicuous. And it shouldn’t go there. Don’t put it, they said, next to the Palace of Westminster because… well, have a look at my closings and get a flavour for their arguments. Put it - they would say - at the Imperial War Museum. Or Millbank Tower. Or the Royal College of Obstetricians and Gynaecologists. But not this. And not here.
We’ve all seen arguments like this before, haven’t we? Of course, folks say, we agree there’s a need for more local housing, but not those houses in this field. OK, they agree, we can see policy supports a tall building on this site, but not one that looks like that. Not your scheme. Not on your site. Do something different. And do it somewhere else.
What does planning law have to say about all of this?
Here are a few headlines (and have a look here if you’d like a few legal references):
The existence of an alternative site for a development may be a material consideration. But it normally isn’t. In fact, it’s only relevant in exceptional circumstances. And a legal challenge for failures to consider alternative sites (absent any express law or policy requirement to do it) is a bit of an uphill struggle. Because you’d need to show that alternatives were so obviously material that no reasonable decision maker could’ve omitted to deal with them.
What kind of exceptional circumstances do we mean? Well, the kind where there are clear planning objections to an otherwise desirable development on a particular site which are so strong that it becomes relevant and indeed necessary to consider whether there is a more appropriate alternative site elsewhere. To be contrasted with cases where environmental impacts are relatively slight and objections not especially strong.
What about different uses on the same site? Well, the starting point is that people may do what they like with their land provided their use of it is acceptable in planning terms. There may be any number of alternative uses to pick from, each of which would be acceptable in planning terms. And absent serious policy conflict, alternative uses on the same site are normally irrelevant.
But again, in exceptional circumstances where you have major planning objections, alternative uses only become material if they are not vague or incohate, and if there is a real possibility that they’d actually happen if planning permission is refused.
EIA cases are a bit different, because there the Regulations positively require you to describe “the reasonable alternatives studied by the developer”.
Got it? Great. Because this stuff may seem esoteric, but last year when a certain London Borough opposed one of my appeals on the basis of a quote unquote “alternative” scheme which hadn’t been justified with reference to any of these legal tests, and which fell firmly into the “vague” and “incohate” category, my client won a full costs award against the Council. A costly mistake. So who knows. It might just be worth putting this post somewhere safe for a rainy day. And we’ve got a fair few of those to enjoy at the moment.
So stay well, #planoraks. Keep calm. And carry on planning.
