Plannning activism - The Legalities of Development and its Resistance in the UK

The UK’s town and country planning control system is notorious for its complexity. It is comprised of layers of both law and policy, which may not all be relevant to an individual planning application. We have:

• the 1998 Aarhus Convention at the international level, which has been incorporated into the national law of European Community member states, including in the UK
• central government's National Planning Policy Framework (which came into force on 27.3.12)
• Regional Spatial Strategies (known in London as the London Plan), and
• at local authority level, Local Development Frameworks (these replace Local Plans and Unitary Development Plans).

Each Local Planning Authority (LPA) e.g. a London borough council, has a responsibility to weigh and balance these policies to ensure overall compliance before planning consent is given.

Despite this complex system of checks and balances, we see increasing loss of character and identity in local communities. Historic environments and buildings that form and define the identity of areas over generations are destroyed. Open and green spaces are built over, with the loss of bio-diversity. The emergence of ‘Tesco Town’ cloned high streets, dominated by multiple house builders and retailers, eliminates diversity in the local economy. In short, places become indistinguishable from each other and could be anywhere – with the consequent dislocation and alienation of communities.

What power do local people have to protect their environment and communities in the face of apparently unstoppable development proposals? How can local people organise to express their views effectively, in the face of powerful government agencies and retail, industrial and other commercial property interests? How can people effectively influence planning authorities and moderate or even defeat development proposals that may cause irreversible damage to their local economies and environments?

Development schemes often start with ‘pre-application’ discussions and negotiations between the developer and the local authority’s planning officers and elected councillors. Developers seek to persuade planning officers to recommend approval of their proposed scheme to the LPA’s planning committees. Major developments may involve significant ‘planning gain’ payments (Section 106 money) being made by the developer to enable the local authority to ‘mitigate’ any adverse effects of the development and payments of a Community Infrastructure Levy to be used for wider strategic purposes. For example, increased investment in educational, medical, transport or other facilities may be required. In larger residential schemes, a percentage of ‘affordable housing’ may be required either on or ‘off-site’, to enable the local authority to discharge its legal duty to house vulnerable people. The attraction of such payments, and a fear of appeals and court challenges if a developer’s planning application is refused, means LPAs have to try to balance conflicts of interest.

Local people often don’t know of ‘pre-application’ discussions until they reach an advanced stage. By which time in principle agreements may already have been reached on the demolitions, land use, the massing and density of a proposed development and the payments to be made by the developer. Local people alert to sites that attract development interest should use their Aarhus Convention rights, Environmental Information Regulations and the Freedom of Information Act to request copies of minutes and other records of pre-application discussions from the LPA and any other public bodies involved. Information obtained should then be shared with others with common interests, e.g. business and residents’ associations, heritage groups and local citizens. Interested stakeholders can then discuss the scheme and whether alternative proposals could produce more sustainable and beneficial outcomes.

Once registered by an LPA, a planning application must be advertised in a local newspaper and notices circulated to local premises and occupiers affected by the proposed scheme. The public usually has only 21 days to lodge written objections, although consideration must still be given to objections lodged after that date. Arrangements should also be made to meet the LPA’s officers to inspect the planning file and to require them, as they are obliged to do, to provide all relevant information and comprehensively explain the application and how it relates to relevant planning policies.

Special rules apply where a scheme affects listed historic sites and buildings or affects designated conservation areas. A substantial scheme may also have to undergo an Environmental and/or an Equalities Impact Assessment and, depending upon its strategic significance, the scheme may require prior approval by a higher authority. For example, in London the Greater London Authority may have to approve before a London LPA can issue a planning consent. Objectors may also consider referring the application to the Secretary of State for Communities and Local government to request the application be "called in".

Written representations should then be lodged with the LPA. Comments and objections to aspects of the scheme should identify non-compliance with relevant planning policies. Representations can also be made to impose certain development conditions, if planning consent is to be granted. Where an application is contentious, the LPA will generally refer it to a full planning committee meeting for decision. Planning officers may otherwise approve minor schemes under delegated powers.

A planning officer’s report to their planning committee must consider the appropriateness of the development and set out the arguments both for and against in a fair and balanced way. Objectors should register to speak at the planning committee meeting at which the LPA’s decision is to be made. The public Register of Members’ Interests should be searched prior to the meeting to ensure that elected planning committee members have no conflict of interest that might give the appearance of pre-determination i.e. they decided before hearing the evidence. If the report or its presentation to the committee is biased, a decision to reject the application may be the subject of an appeal by the applicant whereas a decision to approve the application may be the subject of a court application for judicial review by any objectors.

To challenge the grant of planning permission requires an application to the High Court for judicial review. This must be made as soon as possible, and no later than six weeks from the date of the planning decision. In view of these timescales, it may be advisable to seek specialist advice for a possible challenge in advance of the planning committee meeting and decision.

While legal proceedings may appear to take the campaign out of local people’s hands, they still carry the risk that the litigating campaigners will become liable for the LPA’s, and sometimes even a developer’s, legal costs if the court challenge to the planning decision fails. Because an unknown amount of the defendant’s costs could be awarded against objectors in addition to their own legal costs, there is a risk of personal bankruptcy. This is one of the biggest obstacles to individuals pursuing legal challenges to environmental injustice.

Adoption of a company structure, to protect directors and shareholders from personal liability, is at the heart of the capitalist system and is designed to encourage entrepreneurial risk. Developers normally incorporate as companies to enjoy this protection, and local politicians and officers enjoy similar protection by virtue of their status within government. Why should individual community members not enjoy such protection? How can legal processes be used imaginatively to ensure greater access to environmental justice and community control of environmental campaigns?

One such model to resist inappropriate development is the community action company, OPEN. OPEN is the trading name of Organisation for Promotion of Environmental Needs Limited, a not-for-profit membership company comprising individuals and organisations from the local communities in which it operates. OPEN's formal objectives are to promote excellence in the quality of the built environment and in the provision of transportation and amenities, to ensure that changes to these have proper regard to the needs of residents and businesses, and the maintenance of sustainable residential and business communities.

The liability of OPEN members is limited by their guarantee to pay £1 if the company is wound up. In other words, if legal proceedings brought in OPEN’s name were unsuccessful and a costs order made against OPEN, its members would have a maximum liability of £1 if the company were unable to pay the costs. By incorporating as a company, OPEN can act both as a sword to challenge environmental injustice and as a shield to protect its members from personal liability.

In practice, OPEN acts as a catalyst to bring people and their organisations together in local fora to campaign under the OPEN umbrella – but at the same time ensuring local ownership and control of the campaign, and reliance on local knowledge and resources. OPEN assists individuals to identify and build on their community’s self-interest. It seeks to provide a platform and a vehicle to express people’s concerns to protect local character and identity, to advance the needs of local business and residential communities, and to promote diversity and a sustainable social and natural environment.

OPEN is about people being able to participate in change, take pride in their communities, and take responsibility for their environment. People work with OPEN, and join as members and directors, to seek a new approach to regeneration and redevelopment, and to act effectively together as citizens. OPEN has so far operated in North and East London which, in the recent years of property ‘boom’ and the government’s strategic initiatives associated with the UK’s successful 2012 Olympic bid, has been the subject of major development interest and commercial pressure.

OPEN began its work in Dalston in 2005, in response to the dereliction of the local built environment and public realm, and with the knowledge that numerous potential development sites had changed hands. Local traders in an increasingly derelict Georgian terrace in Dalston Lane, which had been transferred from public to private ownership following an auction, faced eviction on the grounds of demolition and redevelopment. An OPEN member approached English Heritage, which identified the historic terrace as worthy of preservation. Following OPEN’s campaign, the LPA’s eventual recognition of an historic asset lead to inclusion of the terrace in a new conservation area. The developer’s appeal to the Planning Inspectorate against refusal was defeated. After several fires and vandalism the Council eventually brought back the terrace and is now promoting a conservation led regeneration scheme.

OPEN next became aware of an unlawful attempt by a few local public officials to demolish locally listed Georgian houses and the 1886 Dalston Theatre without planning permission. OPEN sought and obtained an injunction in judicial review proceedings. As a result, the local authority was forced to consult the public as part of a planning permission application. What emerged was a plan by the local council, and agencies of the Greater London Authority (Transport for London and the London Development Agency), to demolish the historic buildings and redevelop Dalston town centre. By selling the cleared site, with planing permission to develop tower blocks of private flats for sale, the authorities hoped to finance construction of a £40-million concrete slab over a reinstated railway station, on which to site a major bus turnaround.

With widespread community support, OPEN challenged the demolition and redevelopment decisions by three sets of judicial review proceedings and obtained court injunctions staying the demolitions for a period of 18 months. Despite alternative development proposals put forward by the community, it became clear that the authorities had not, and were not willing to, consider alternative plans. Ultimately a fourth planning decision was made by the LPA which was procedurally sound and therefore legally ‘bullet proof’ from further court action. The historic buildings were eventually lost after the government refused to intervene and ‘call in’ the planning decision, on the basis that the development would provide essential transport infrastructure required for the 2012 Olympics. Nevertheless, the campaign achieved a 30% reduction in what was to be a grossly overdeveloped scheme but The Slab is now estimated to have cost £63 million and is being used by only one bus route.

The local OPEN Dalston group has since undertaken widespread community consultation and made representations to the LPA regarding the Dalston Area Action Plan which will soon be the subject of an Inspectors Inquiry. OPEN Dalston has also been in discussion with the LPA regarding ways in which the remainder of the town centre could be improved with community involvement.

More recently OPEN Dalston worked with local residents and businesses in lodging a petition and making written and personal objections to the LPAs planning committee against an exclusively private towerblock which would have dominated the Kingsland High Street and have no affordable housing. The Committee unanimously rejected the scheme.

In Aldgate, OPEN assisted the local Bengali community to make written and personal representations to the City of London Corporation’s planning committee. The committee imposed planning conditions on a proposed major office redevelopment to including structural works to mitigate the effects of overshadowing residents’ homes and gardens.

In Shoreditch, OPEN assisted local associations to make representations to the LPA and higher authorities. This won protection from demolition for a historic building, The Light, by its inclusion in a redefined conservation area. Its redevelopment as a 50-storey tower block will not now go ahead. OPEN Shoreditch also challenged the planning consent for another tower, as the local authority’s own conservation and design officers’ views were not reported to the planning committee. OPEN Shoreditch is now campaigning for a community-based masterplan to ensure a sustainable outcome for the Bishopsgate Goodsyard and the area generally.

Even though individual OPEN members have no personal liability for costs awarded against the company, its directors have a duty to act reasonably i.e. to protect OPEN from the risk of unquantified costs awards that could render it insolvent. To manage down this risk, OPEN asks the court to make a protective costs order (PCO), which would cap the amount of legal costs that can be awarded against a litigant in the event that the case is lost. Until now, the courts have limited PCOs to cases with more than local significance. However, this is inconsistent with the Aarhus Convention as PCOs are essential to achieve ‘equality of arms’ between well-resourced local and national government authorities and private corporations as against not-for-profit community-based companies such as OPEN, which seek to challenge them using donations, fundraising and voluntary effort.

However, the remedy of judicial review has limited value. Parliament has conferred the discretion of whether or not to grant planning applications on the LPA and not the Courts, and so the Court’s concern will primarily be with the form and not the content of the decision. The Court will not substitute its own view of the merit of the scheme but can quash the decision granting permission if it has the appearance of bias, inappropriate procedure or other error. The developer can nevertheless resubmit the planning application to be reconsidered and the LPA may then grant permission lawfully, by a decision which corrects earlier errors. In view of this, OPEN’s legal challenges are combined with campaigns to raise public awareness and apply political pressure – particularly where the public authority is in partnership with private developers or is itself the landowner.

In its campaigns, OPEN analyses and disseminates information regarding development proposals including Environmental Impact Assessments. It then:

• consults affected local communities and assists the formulation of objections
• forms alliances with local and national organisations and amenity societies and coordinates objections to LPAs
• convenes local election ‘hustings’ and develops communications with local political representatives, and
• makes representations to local, regional and national planning authorities.

The involvement of local people in OPEN, as company members and directors, strengthens contacts with the local creative communities. OPEN Dalston has worked closely with filmmakers Winstan Whitter, Mike Wells and Channel 33 and with the writers Michael Rosen and Iain Sinclair, to communicate complex issues and broadcast these across the community and media networks to raise public awareness and understanding of events. In OPEN Shoreditch, local artist Brad Lochore worked with artists Tracey Emin, Rachel Whiteread and others to organise an Art Storm to lobby the Greater London Authority regarding its support of City expansion into the Bishopsgate Goodsyard. This had proposed sterile towers, without any community consultation or promised masterplanning, and prominent artists have helped to raise fighting funds by donating valuable works to an auction.

An emerging area of law that potentially offers assistance to environmental campaigners concerns the Aarhus Convention. Compliance with the Aarhus Convention of 1998 is an overarching requirement of states within the European Community. Aarhus provides that adequate protection of the environment is essential to human well being and the enjoyment of basic human rights including the right to life itself. With this in mind, Aarhus recognises that to enjoy and assert these rights:

• citizens must have access to information affecting the environment in a transparent, timely and understandable form and free of charge
• be entitled to early participation in decision-making, while options remain open and effective public participation can take place, and
• have access to justice and legal remedies in environmental matters that are fair, timely and not prohibitively expensive so that legitimate interests of the current and future generations are protected and the law upheld.

Aarhus therefore requires national, regional and local authorities to take whatever steps are necessary to achieve compliance with these objectives and to ensure that members of the public, irrespective of their location, do not face discrimination or penalties in seeking to enforce such rights. In recent years, the UK courts have recognised that national amenity societies have a legitimate interest and expectation that the courts will entertain challenges of environmental decisions of wide public concern. Since Aarhus, however, judges increasingly recognise that local citizens’ organisations should enjoy the same rights in relation to environmental issues that affect their local communities. The provisions for access to environmental justice in the UK risk beaching its convention obligations. We can expect to see increasing reliance upon the Aarhus Convention in challenges made to public authorities for environmental justice.

The author, Bill Parry-Davies, is a partner in the London solicitors’ firm Dowse and Co. and a founder member of the community action company OPEN (Organisation for Promotion of Environmental Needs Limited).
An earlier version of this article first appeared in ‘Critical Cities Volume 1’ published by TINAG.