Bribing the NIMBYs

One of the things the government finds really frustrating is that they can’t MAKE local planning authorities grant planning permission. They can try persuasion, and they can ultimately impose government policy (as set out, for example, in the NPPF) through the appeals system; hence the housing appeals that are being allowed on greenfield sites where these developments are being resisted by local councils. But this still delays development that the government would like to see happening right now.

The problem is that elected councillors, fearful of losing their seats at the next council elections, are very susceptible to pressure from vociferous NIMBYs in their district, and it is this that has led quite a few councils to allocate less housing land in their emerging development plans than is objectively needed to meet housing demand in their areas, and to refuse planning permission for housing developments, wind farms, waste incinerators and other such schemes that tend to get the NIMBYs foaming at the mouth.

Now we have the prospect of fracking (extracting natural gas from gas-bearing shale by hydraulic pressure), which is strongly supported by the government, mainly I suspect because of the failure of successive governments since 1990 to come up with a viable strategy for energy, with the result that the lights are going to go out quite soon now unless the government can find a quick fix for the energy deficit. They have seized upon fracking as the answer, like a drowning man clasping at a piece of driftwood. Short of keeping the remaining coal-fired power stations open, in breach of international commitments, there doesn’t seem to be much alternative in the short term, although the nuclear option is clearly the best solution in the longer term. (Forget wind power – it is never going to deliver.)

But here we come back to the NIMBY problem, and the resulting reluctance of local planning authorities to grant permission even for purely exploratory drilling.

Three years ago, when the government decided that it wanted to promote more development as a means, they hoped, of kick-starting economic growth, they came up with the idea of the New Homes Bonus - effectively a bribe to local planning authorities to accept housing development in their areas which they might otherwise have been inclined to resist. There seems to be very little evidence that this has influenced planning decisions at the local level, not least because the NIMBYs can’t see any benefit for themselves in a bonus being paid to their local councils, so they have naturally kept up the relentless pressure on their councillors to resist further development in their area.

It may well have been the slowly dawning realisation among ministers that the New Homes Bonus has been largely ineffective in influencing local decision making that led to the Chancellor announcing in his ‘Autumn’ Statement (in December) that the bribes to accept new development offered to councils (in the form of the New Homes Bonus and the neighbourhood funding element of the Community Infrastructure Levy) might be extended to individual households in areas where new housing developments are to be built. Now we have a similar proposal in relation to fracking, whereby local residents might be paid some form of financial compensation for the disturbance and inconvenience caused by fracking.

No indication has been given as to how either of these ‘compensation schemes’ might work, and I strongly suspect that the government really hasn’t given any serious thought to the practicalities (or even to the practicability) of these schemes yet. It smacks of making policy on the hoof - a frequent habit of the present government, who seem to make a practice of announcing policy initiatives only to withdraw them when it becomes clear, usually quite quickly, that they are seriously unpopular or that they simply won’t work. (Maybe this government should be given the Turner Prize for developing the U-turn as an art-form.)

It is difficult to see how any compensation scheme might work in practice, and it seems improbable, bearing in mind the continuing resistance to further housing development and the virulence of the increasing opposition to fracking, that any scheme designed to buy off the NIMBYs with direct bribes (er, I mean ‘compensation’) will have the effect the government hopes to achieve. There must also be doubts over the legality of such a procedure, especially if (as appears to have been hinted) the compensation for fracking is to be paid by the extraction companies direct to neighbouring owners. How could this be reconciled with the fierce and all-embracing provisions of the Bribery Act 2010?

Ultimately, the government will get its way by allowing appeals against the refusal of planning permission at the local level, but at the cost of a delay of up to a year in bringing shale gas on-line, so as to address the increasingly urgent energy deficit.

I think it might be a good idea to ensure that you have a good stock of candles at home.

© MARTIN H GOODALL

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Breaches of planning control – the need for continuity

[I generally try to avoid posting very long items in this blog, but just occasionally a topic crops up that requires a more lengthy treatment. The following article might justify publication in a legal journal, but I thought I would share it with readers of this blog in the first instance. As with a previous lengthy article I wrote on barn conversions, I propose to split this article into at least three separate blog posts.]

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It is an interesting coincidence that my colleagues Ben Garbett and Oliver Goodwin and I have all been puzzling over the same legal conundrum recently in connection with various cases in which each of us is currently involved. The issue that we have all been considering is the need to demonstrate continuity of a breach of planning control in the case of a change of use and/or breach of condition in order to establish that this breach has become immune from enforcement and therefore lawful.

The judicial authorities differ slightly depending on the nature of the breach (change of use to a single dwelling – the 4-year rule, change of use to some other use – the 10-year rule and breach of condition – the 10-year rule again). However, it is convenient to look at all these cases together in the chronological order in which the respective judgments were delivered.

The first of these cases, Nicholson v. SSE [1998] JPL 553, was heard in 1997. It related to the breach of an agricultural occupancy condition [“AOC”] in respect of which an LDC was being sought. The inspector, having reviewed the evidence concluded that the condition had not been breached continuously for a period of 10 years. The appellant also challenged the finding that there should be a subsisting breach at the time of the application.

The break in the continuity of the breach of condition arose from a period of several years when the property was unoccupied. The Inspector, applying an approach to this issue previously taken by the Secretary of State in other appeals, considered that there is no breach of the AOC during a period when an agricultural dwelling is not occupied at all. The house had remained unoccupied right up to the time of the LDC application. Its use as a dwelling had not been abandoned as such, and in fact it had been substantially extended (with planning permission) and had been subject to a lengthy process of refurbishment. However, following this continuing period of non-occupation, the inspector had concluded that any future occupation of the property by a person not complying with the AOC would be a fresh breach of the condition, with which previous periods of non-compliance could not be aggregated.

The Deputy Judge analysed the legal position in this way. By section 191(1), if a person wishes to ascertain whether “(c) any other matter constituting a failure to comply with any condition.....is lawful” he may make an application for that purpose. This paragraph is worded in the present tense, and is clearly directed towards the time when the application is made and to the lawfulness of the breach of condition at that time. By section 191(3), any matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful at any time if the time for taking enforcement action in respect of the failure has expired (provided, of course, that it does not constitute a contravention of any of the requirements of any enforcement notice or breach of condition notice then in force).

The Deputy Judge held that to answer the question whether enforcement action can be taken against a failure to comply with a condition, the decision maker should identify the failure to comply, look to see when, as a matter of fact and degree, that failure began and, finally, decide whether a period of ten years has since expired. He made the point that in this context a failure to comply with a condition is not to be confused with the continuation or abandonment of a planning use. Most significantly, he observed that if non-compliance ceases by discontinuance of the offending activity or otherwise, that breach is at an end. The condition will, however, in an appropriate case continue in force. If there is subsequently renewed non-compliance, this would be a fresh breach, and the period for enforcement against the breach under section 171B(3) will begin to run again. It is not permissible to add the period of one breach to that of a subsequent breach, if as a matter of fact and degree they are separate breaches.

In applying that test under section 191(3) the decision maker is concerned with the particular non-compliance, the subject of the application for a certificate. This is consistent with a requirement that the non-compliance should exist at the time of the application. The Deputy Judge was careful to make it clear that he was confining himself to those provisions of section 191 which deal specifically with failure to comply with a condition, and he concluded that an application for an LDC can only be made if non-compliance exists at the time of the application. The applicant will then be entitled to a certificate if, at that time, the failure the subject of the application satisfies the definition of lawfulness, i.e. that a period of 10 years has expired since that breach occurred [or one might say ‘began’, in the case of the breach of a condition requiring continuous compliance, such as an occupancy condition].

The Deputy Judge then went on to make a number of observations (which were in their nature obiter) on the relationship of this issue with the other provisions of section 191 in respect of uses and operations. These observations are nevertheless of relevance in view of their having been quoted in later judgments relating to those issues, which I will examine in the next part of this article.

© MARTIN H GOODALL

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