It quotes Charles Mills, planning partner at chartered surveyors Daniel Watney, the planning consultant representing Carnwath Road landowners Nortrust Nominees and Comer Home
Mills said that the secretary of state had acted “outside of his powers in trying to impose a safeguarding direction in the extent that he has”. He added: “The section of the Act is very clear. What the secretary of state is proposing goes far outside of that.”
The direction includes
not to grant planning permission or enter into any agreement or other arrangements, or pass any resolution, in connection with the possible grant of planning permission on any application in respect of any land to which this Direction relates, without his specific authorisation.
I’ve underlined the parts which appear to not have any support in the legislation. Sections 74(1)(a) and (f) of the 1990 act give the SoS power to make development orders
(a) for enabling the Secretary of State to give directions restricting the grant of planning permission by the local planning authority, either indefinitely or during such period as may be specified in the directions, in respect of any such development, or in respect of development of any such class, as may be so specified;
(f) or requiring the local planning authority to give to the Secretary of State, and to such other persons as may be prescribed by or under the order, such information as may be so prescribed with respect to applications for planning permission made to the authority, including information as to the manner in which any such application has been dealt with.
25.—(1) The Secretary of State may give directions restricting the grant of permission by a local planning authority, either indefinitely or during such a period as may be specified in the directions, in respect of any development or in respect of development of any class so specified.
Its quite patently clear then this the SoS has exceed his powers by including text in the direction which is not granted by statute. But noone get your hopes as the the outcome of this is simply likely to be the striking out of those words rather than defeat of the entire order.
The issue of passing a resolution is not necessary, as following the Merrydown case of an LPA passed a resolution of submit a local plan contrary to national policy through ignoring a safeguarding direction then it would immediately become challengeable.
Similarly if either LPA has resolved to grant consent subject to a planning obligation then if that obligation has not yet been signed the consent cannot be issued as the courts have held on several occasions that it is the receipt of the decision notice/signed obligation that is the consent, not the prior resolution to grant. So it would be unlawful to sign the agreement and issue the consent in the face of a safeguarding direction, even without the underlined words.
So all the DCLG has to do is withdraw and reissue without the offending words of the direction – then it would be completely watertight.
The really interesting aspect of this is compensation. The zoning of the site in H&F was changed when the core strategy was adopted in October 2011. If Thames Water had got its act together and persuaded the SoS to issue the direction last September they would have prevented the consumers of Thames Water subsidising Nortrust Nominees and Comer Home by tens of millions of pounds. They wont lose a penny from this as they can submit a Certificate of Appropriate Alternative Development on what they would have otherwise got consent for on the ‘relevant date’. Likely to be high density housing. So whose interests are being served here by H&F – the interests of landowners only rather than the interests of residents who would have to pay extra to ‘compensate’ the landowners on a scheme that would never be built.