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By Scott Stemp of http://planningblog.org/

Nov 29, 2011

“Look, if you had one shot, one opportunity

To seize everything you ever wanted…one moment
Would you capture it or just let it slip?”
- Eminem, “One Shot”

It seems that Marshall Mathers III has a remarkable degree of insight into the application of the Law of Unintended Consequences on one of the coming reforms under the Localism Act. When brought into force section 123 of the Localism Act will introduce the brand-new s70C and amend sections 174 and 177 of the T&CPA to bring about reforms to retrospective planning permission.

“All very well” I hear you say “but what has this got to do with Eminem?“. Bear with me.

Section 70C will introduce a power to the LPA to decline to determine an application for permission if granting the application would (in whole or in part) constitute a grant of permission for any matter specified in a pre-existing enforcement notice. A ‘pre-existing enforcement notice’ is one that has been issued before receipt of the application (note ‘issued’ not ‘effective’ or ‘appealed’).

This power to decline applications will be mirrored by amendments to sections 174 and 177 of the T&CPA. The amended s174 (by inserting subsection 2A) will deny ground (a) from appellants in an appeal against an enforcement notice where the enforcement notice relates to development (in whole or in part) for which an application for permission has been refused by the LPA.

The amended form of s177 of the T&CPA will remove the ‘deemed application’ from any enforcement appeal in circumstances where the new s174(2A) (above) applies.

But why? Well the Bob Neill told us that the objective was to tighten the rules where an abuse takes place with either the tandem or consecutive use of retrospective applications and appeals against notices (Hansard, Tuesday 1st March 2011, col. 725).

According to the Government (and I am not making this up) the sort of people who do this are ruthless and determined, and money is involved and LPAs are often frustrated or deterred as a result (Bob Neill again, Hansard, Tuesday 1st March 2011, col. 725).

“Fine” you say “but still, why Dr Dre’s protégé?“. Well, think about it. In order to try and assist LPAs (no giggling please) the Government has brought about a position where a developer can either apply for permission or appeal an enforcement notice on ground (a) / the deemed application – but not both.

Don’t forget we’re dealing with ’ruthless and determined’ developers where ‘money is involved’. This is their one shot at permission, so you can be fairly certain they’ll apply whatever resources are commensurate with the importance of obtaining that permission. Which the LPA will have to deal with all in one go. So it’s a good thing that LPAs are not in any way strapped for cash, officer time or other resources and will be able to match whatever resources these ruthless developers pile into such applications…

So as a developer, the question as put by Slim Shady – if you had one shot, one opportunity to seize everything , would you capture it, or just let it slip?
Scott

http://planningblog.org/

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