The root of the problem with the new reg's seems to be the lack of guidance from Communities and Local Government (CLG) as to the intended meaning of the terms and words used. SI 2008 No 2362 was the first planning development Order in sixty years to be brought in WITHOUT explanatory guidance called a "Circular". Circulars set out in (sort of) plain English what the wording in the regulations (necessarily drafted in legal terms) is intended to mean and how it should be applied.
The previous government, however, did not issue such a Circular and as a result both councils and householders and their agents are having to waste time, money and effort trying to arrive at agreement on meaning and interpretation. Often such agreement is not reached and attempts to obtain a Lawful Development Certificate (LDC)—a document from the local council confirming the lawfulness of a development—end up at the Planning Inspectorate (PINS) to decide.
Unfortunately, the Inspectors at PINS are 'flying blind' just as much as householders and councils with the result that the growing pool of decision lettters relating to the new regulations is full of inconsistencies and conflicting results. PINS decision letters are issued by an appointed case Inspector IN THE NAME OF THE Secretary of State (SoS)—in this case the SoS for CLG— on who's behalf the decision has been made.
Historically this enabled an SoS to ensure that decisions are made in line with interpretation and meaning along the lines the legislature intended. This is a vital link between the administration and the judiciary: once an Inspector's decision has been issued it can only be challenged in the courts. The current state of affairs—lack of Circular guidance—breaks that link. The SoS is deprived of an essential tool to steer decisions to be nationally consistent in meaning and application and the Inspectorate is left to fend for itself.
As a result, not only is the otherwise highly regarded Planning Inspectorate losing credibility, but the traditional status of a decision letter itself is undermined. Decision letters are quasi-legal: not as strong as a court decision but nevertheless a powerful indicator from the SoS of how an issue or point should be interpreted in the future. They are precedents which not only provide a definitive answer in the case being decided but provide guidance for future determinations. Or at least they were until the new reg's came along without a Circular.
It's not hard to see where this leads to. Delays are becoming protracted. For example, a decision issued in the last few days of June 2010 started off in a local planning department in April 2009. And that was just for confirmation that a little rear extension was permitted. The inspector dismissed the appeal on a matter of interpretation contrary to the findings of one of his colleagues on the same matter a couple of months earlier! Apart from the 14 months or so wasted in this grueling process, which Inspector's decision is to be treated as the precedent?
Lawful Development Certificates are becoming increasingly important for householders as (allegedly) unauthorised extensions and the like can delay house sales. More lenders are requiring evidence that a proposed home improvement would be lawful before advancing a loan.
LDC's take too long to get locally (generally 8 weeks for a decision, as with a household planning application, but there's no 3 week consultation/notice period for an LDC so why not a statutory maximum of 5 weeks?) and far longer if taken to appeal. Lack of clarity of meaning leads to more local refusals and, in turn, to more appeals. The Inspectorate becomes bogged down in a flood of appeals. The appeals take longer. Applicants and local councils are then left waiting even longer still for appeal decisions for guidance on the next application…..And so it goes round.
As it's become more difficult to move, more families are looking at improving the house they've already got. We don't have time to waste FOR THE STATE to get its act in gear. The kids are getting bigger all the time. Little David is going to eat his sister if he has to share the same bedroom with her for another 12-18 months. It is not acceptable for the state to interfere in families' welfare and private business to this degree.
The numbers of families lacking sufficient space for current needs is well known to run into the millions. Hundreds of thousands are able financially, and possibly willing, to act now and commission that loft conversion or extension or whatever to solve the space problem. For many, the huge price differential between a three and four bedroom home leaves extending in some way as the only option.
So the demand is there. The workforce and supply chain are ready. The economy is waiting. And waiting, and waiting….
What government could do:
1. reduce the statutory time limit for local councils to determine householder Lawful Development Certificates from the current 8 weeks to 5 weeks. There is no 3 week statutory notice period for a LDC so such period is not justifiable in the process. (In any case, most planners could assess a LDC application in minutes standing on one leg.) This measure needs primary legislation, but there's an amendment due in the autumn for other changes anyway so add it to that.
2. Issue forthwith an explanatory Circular setting out what SI 2008 No 2362 is intended to mean. It is known within CLG what they intended. As part of the process of reform and amendment of the old regulations to introduce a more liberal regime for householders, Steering Groups were set up and staffed, many thousands of pounds were expended on consultants (at a charge out rate(?) of £1,700 –one thousand seven hundred pounds—per day for a 'lead' consultant, usually with a couple of 'juniors' in tow at a less eye-watering £850 per day –each) reams of consultations and reports were produced, just about everybody you can think of was consulted, industries responded and reported, impact assessments were produced.
Add to all this available knowledge, information and expertise the fact that there's now, nearly two years after the rules came into force, a pool of (inconsistent) appeal decisions to flag up where the wrinkles are, and it should surely be possible to draft a Circular PDQ.
Neither primary nor secondary legislation is needed for this. It could just be written and issued with immediate effect.