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Milton Keynes cannot keep up….apparently

So the story goes like this.

Four applications for prior approval were submitted on the same day on the same site and were registered (notwithstanding some registration shenanigans by the LPA) on the same day namely the 16th March 2021. Keep that date in mind…its important!

The applications were for a 7 unit scheme, two different 8 unit schemes and a 9 unit scheme. we had to make them this way as Class O now requires binding floorplans.

Application No: 21/00796/PANB1C was approved on 10th May 2021. The plans showed that the dwellings approved in that scheme did not meet the 37sqm minimum in para 9A. This was fine as the application was submitted prior to the effective date for para 9A.

The two 8 unit schemes and the 9 unit scheme were refused for failure to comply with para 9A of Part 3 of Schedule 2 of the GPDO 2015 as amended by the 2020 regulations! All three are now subject to live and active appeals.

In relation to all three appeals prior approval was refused solely for the reason that the proposed plans shows units that would have a floor area less than 37m2. According to Paragragh 9A of Article 3 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended), the proposal does not qualify as permitted development set within Class O, Schedule 2, the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended).

The Council’s standpoint on all three applications is fundamentally flawed and amounts to unreasonable behaviour that can result in an award of costs against the Council.

Para 9A was brought in by regulation 3 of the The Town and Country Planning (General Permitted Development) (England) (Amendment) Regulations 2020. It is subject to transitional arrangements at regulation 12 of the same regulations.

Regulation 12(2) is clear and unambiguous and states:

(2) The amendment made by regulation 3 of these Regulations does not have effect in relation to development under—

(a)Class M, N, O, P, PA or Q of Part 3 of Schedule 2; or
(b)Class A, ZA, AA, AB, AC or AD of Part 20 of Schedule 2,

where an application for prior approval is submitted before 6th April 2021.

There can be no other interpretation to paragraph 12(2). As such by refusing prior approval for applications clearly submitted to the council prior to the 6th April 2021 under regulation 3 and para 9A the council have erred in law and their decision is fundamentally flawed on that basis.

However this gets more serious than just no reading a paragraph.

I called the Council prior to making these appeals and spoke to the Interim Service Development Manager. In order to avoid these appeals the we invited the council to review the decisions and re-issue as a clear error in law occurred. The Manager declined to do this under the procedures within the planning act preferring the matter to be dealt with at appeal thus relying on the Inspector to correct the council’s mistake. The Managers explanation for the Council’s clear error was “The regulations change like the wind and the council cannot be expected to keep up with the regulations”. 

The RTPI Code of Professional Conduct states:

Members must take all reasonable steps to maintain their professional competence
throughout their career…and; Members who, as employers or managers, have responsibility for other Members or
professionals must take all reasonable steps to encourage and support them in the
maintenance of professional competence.

No knowing the regulations should never be an excuse for a chartered town planner!

We anticipate that the Inspectorate will indeed tidy up the mess left behind by the LPA but fundamentally this should never have got to this point and just demonstrates the under-funding and under investment in the planning system over the last 20 years.

And most of all lets hope this results in a little re-training at Milton Keynes Council!