Election 2015: a planning lawyer’s take

Planning law is an area where politicians and lawyers alike have to tread carefully in the run-up to an election, especially in regard to controversial developments.

The conduct of public bodies before an election is largely governed by convention, rather than codified law. Best practice and any relevant guidance should be followed by public bodies to ensure they are acting lawfully, particularly when making decisions on policy and actions with a long-term impact.

R (on the application of Lewis) v Persimmon Homes Teesside Ltd [2008] EWCA Civ 746found that a decision to grant planning permission for a controversial development during the pre-election period was not unlawful. However, the court noted that the decision to hold a meeting of the local authority’s planning committee during the pre-election period could in principle give a basis for the grant of permission to be quashed. This now means there will effectively be a suspension of any decision-making on planning permissions and applications for development from at least the date when Parliament is dissolved on 30 March 2015.

Convention usually requires sensitivity for three weeks or so pre-election. However, there is the old saying that ‘an Englishman’s home is his castle’. This means that planning, development and house-building are always sensitive and politically-charged topics, capturing the attention (and votes) of the electorate. ‘Election fever’ does indeed seems to have made its mark since late 2014 on decisions relating to controversial planning and development applications. During the last year, the Secretary of State had refused approximately nine out of ten applications to build onshore wind farms – leading to allegations during October 2014 that party politics and a desire to ‘win’ votes was to blame.

The main parties have made broad statements about their intentions for housing and development:

The Conservatives…

  • Pledge that up to 200,000 extra homes will be built over the Parliament, while continuing to protect greenbelt land.
  • Intend to extend planning rules so homeowners can build larger extensions without needing full planning permission (provided no objections are raised) and introduce new rules making it easier for parties to purchase brownfield land from the local authority to build their own homes.
  • More empty, underused buildings and brownfield land is to be exploited.
  • Propose that financial obligations expected from developers for affordable housing will be relaxed, to give greater flexibility over the mix on new sites.

Labour…

  • Want 200,000 new homes built per year by 2020.
  • Intend to give local authorities new borrowing powers to fund initiatives.
  • Potentially will allow councils to take action against developers where developments are not begun within a fixed time-frame.

The Liberal Democrats…

  • Hope for 300,000 new homes per year, including ten new garden cities.
  • Sites would be ring-fenced for smaller developers. Councils would have to identify suitable development land over a 15-year period.

UKIP…

  • Intend to prioritise development on brownfield land.
  • Pledge to reduce VAT and make new homes exempt from stamp duty on the first sale.

The Green Party…

  • Prioritise social homes for rent, with 500,000 new properties being the target and the suggestion that allowances on buy-to-let mortgages should be abolished.
  • However, leader Natalie Bennett faced criticism after her strained responses on housing and development issues during an LBC Radio interview.

It will remain to be seen whether any new/recently-amended planning and infrastructure legislation is changed if a different government is in power after the General Election. The Infrastructure Act 2015, for instance, is a vast and important piece of legislation that received Royal Assent on 12 February 2015. While most of the Act’s provisions were not vehemently opposed by front benchers and represent ‘baby steps’, rather than introducing sweeping changes, a new Parliament’s likely actions can never be second-guessed.

Philippa Plumtree-Varley is a solicitor at Walker Morris