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Planning documents to be published on planning portals
Most readers will be familiar with determining authorities’ planning portals or registers. Authorities use them to publish details of planning applications and record planning decisions. Authorities are in fact obliged to publish these details along with other decisions and approvals too (by the 2015 Development Management Order).
The requirement to publish planning applications and applications to discharge reserved matters that are pending determination includes the following are documents, although to date authorities’ standard practice has meant they are typically absent:
- copies of draft section 106 planning obligations and section 278 highway agreements;
- copies of completed 106s and section 278s that have influenced the authority’s decision; and
- variations and discharges of such documents.
Judicial review threat
Following a Court of Appeal judgement in April this year this standard practice poses a clear and present judicial review risk.
The case (R. (on the application of Greenfields (IOW) Ltd) v Isle of Wight Council) considered the planning authority’s determination of a planning application for 473 new homes. The planning committee resolved to grant permission subject to a section 106 dealing with a contribution to highway improvements, an aspect of the development that was of keen interest to objectors. After two years’ of negotiation, this was concluded and the committee resolved again to grant permission. The permission was granted four months later. At no time was the section 106 made available on the planning portal.
The Court found the Development Management Order required that certain documents must be placed on the planning register in the period before an application for planning permission is finally disposed of in order to enable members of the public to know and comment on the terms of a proposed or agreed planning obligation, if they choose to do so (noting that this requirement is not a wider duty to consult).
The planning authority’s non-compliance with this procedural requirement of the Development Management Order was sufficient in this case to cause the Court to quash the planning permission.
It’s not black and white
The judgement was clear that it did not consider any and every failure to comply would invalidate the grant of a planning permission. It is necessary to evaluate the consequences of non-compliance on the facts of the case. Perhaps, despite the absence of publication, the key contents of the section 106 were already in the public domain. Perhaps, reporting in sufficient details of the heads of terms, would amount to substantial compliance to discharge the publication duty. Perhaps, interested members of the public already had the opportunity to comment on an unpublished draft. Perhaps, there was nothing of contention in the obligations or in the development as a whole.
What is clear is that following the judgement, taking a view on these ‘perhaps’ is not for the faint hearted. Rather, it is better for determining authorities to ensure the engrossment draft section 106 is published before the permission is granted and ideally allow sufficient time for comment (what is sufficient time is still uncertain though emerging practice would suggest to allow between 7 and 14 days before proceeding to section 106 completion).
Managing the risk
Planning decision making is already fraught with judicial review opportunities. This is one more example. Managing the threat already requires the diligence of applicants, planning officers and decision makers.
Now the issue is in the limelight, planning professionals can manage it together. Officers can report on the heads of terms of the planning obligations to committees. Committee meeting minutes can record those terms. The applicant’s lawyers can prompt the authority to publish engrossment drafts and hold completion until they have seen evidence of that publication. Planning performance agreements can identify timely publication as a necessary step. Of course, this will cause delay. But better a week’s delay than a year’s battle through the courts.
Buyers of sites with the benefit of planning permission can build appropriate conditionality into their contracts such that the draft section 106 has to have been published prior to the grant of planning permission. They can request evidence this statutory requirement has been discharged and wait out the judicial review window if it has not (as insuring against this risk may not be supported by the insurance market). Frustrating though added delays might be to the section 106 negotiation process, the downsides could be worse.
As a final cautionary note, there are plenty of seemingly inconsequential statutory requirements in the planning system that are regularly overlooked. They are ignored by all parties as standard practice.
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