P&E Court Practice: The end of the scatter gun/the return of the town planner
It has been a feature of legal practice in the Planning and Environment Court that all too often parties opposing approval have prepared long lists of provisions extracted from planning schemes alleging non-compliance with scheme provisions as a basis for refusal. While never best practice, this approach, made sense under the now repealed Sustainable Planning Act 2009 which set up a two step conflict / grounds test for assessing development. As a practical matter, production of a lengthy list of unrelated provisions was often a hindrance for identifying the "real issues" in a case and made for laborious case preparation as well as trials that were longer (and more costly) than necessary. More importantly, the old test marginalised the role of the town planning profession to merely identifying and characterising conflict and planning grounds. Recourse was rarely had to the principles and practice of town planning - which was effectively a body of professional knowledge which was applied during the formulation of planning schemes but often not referred to during the development assessment process.
Times have changed for two reasons. Firstly, the legislation has changed and under the Planning Act 2016 a more nuanced set of decision rules now apply which more room for the critical question of "why" to be asked and examined. While considering whether a development application is consistent with a scheme must still of course occur, the removal of the statutory instruction to refuse a conflicting application in the absence of the matters of public interest, has changed the dynamics of development assessment. Understanding the underlying rationale and relevance of non-compliance in the context of the verbiage of the scheme and site context is now just as important to the outcome as non-compliance. So too is recognizing that not all failures to comply are equal in the context of modern performance based planning schemes.
The court, whose members have long had to grapple with the "scatter gun" lists of issues when writing their judgments, has recognized and embraced the change with vigour. It requires not only that disputed issues be identified and consolidated in an efficient way but that the "why" be addressed from the start of any appeal. It recognizes the importance of planning practice and principle, quite apart from the scheme, in determining the outcome of any given application. This greater emphasis on the independent profession of town planning in the development assessment phase and the application of these principles to development assessment is a welcome change. It provides the opportunity to provide context, logic, independent analysis and persuasion to bear in the consideration of a development proposal. While the approach of the court is relatively recent the writer's early experiences at least have been that not only are matters now more efficiently managed and run in the court but opportunities for early engagement with assessment managers about the important issues can be achieved more readily.
