Complexity Condemned

Planning, 25 May 2007

The complexity of the planning system continues to boost many of the country's leading legal practices. Solicitors report strong growth across all areas, while imminent changes to the system promise to keep the sector buoyant for the foreseeable future.

The sheer size of many developments is creating more conflict at a local level. "We are in a period where there is a very positive backdrop for large-scale plans," says SJ Berwin partner Simon Ricketts. "But there is often a tension between support at policy level and uncertainties for local people faced with very large schemes. We need to make sure developers do not put a foot wrong."

Tim Pugh of Berwin Leighton Paisner, identified by legal professionals as the most highly regarded planning law practice for the tenth year in a row, says the market is moving towards larger projects. "People look to us for advice on how to bring developments forward against an increasingly complex planning background," he notes.

That complexity is in itself creating more work for lawyers. "In recent years we have focused on section 106 agreements and development control procedures," says Iain Gilbey, head of planning at Shoosmiths. "But now we get involved at ground level advising on strategy from cradle to grave." The firm is working on schemes much earlier in the process and for much longer, he adds: "On some schemes we are not looking one year ahead but five or ten."

Tony Kitson, partner and head of planning at CMS Cameron McKenna, predicts that all areas of planning work will grow simply because the system has become so complicated. "Despite the government blathering on about simplifying the system, it makes it more difficult every day," he complains. "Now we cannot make an application without submitting ten tonnes of paper and spending a year discussing it with people who do not want to make a decision."

Kitson is damning about recent reforms. "We should go back to the system as it was five years ago. It had the right balance between developers, local authorities and the public," he insists. "Now nobody knows what is going on. It is shocking that King's Cross, which went through five years of consultation, is now being held up by a handful of protesters. I do not think the Barker team or many of those in the DCLG understand the planning system or the development industry."

In the year ahead, meanwhile, planning solicitors predict that the ramifications of the Planning and Compulsory Purchase Act 2004 will come to a head. Many are guiding clients through local development frameworks (LDFs) and regional spatial strategies (RSSs). "There is an inevitable mismatch between quick decisions and working schemes through the process," says Lovells partner Michael Gallimore.

Clifford Chance partner Nigel Howorth also fears that the LDF system is going to slow things down. "It is in danger of being even more bureaucratic," he laments. "You now have a mass of documents to replace what used to be a single document. I do not see that as streamlining anything." Walton & Co principal David Walton agrees: "The LDF system is dying under the weight of its own bureaucracy."

He adds: "RSSs are increasing the requirement for housing numbers while PPS3 requires a five-year rolling system. The result is that there is a mismatch between supply and demand. LDFs will not deliver the amount of land needed in the timescale required by PPS3. There is a serious likelihood that we will return to the appeal-led planning of the 1980s."

Pinsent Masons head of planning Richard Ford says his firm gets a lot of work "plan plugging and plan wrecking" from both sides of the LDF fence. "There are gaps in government guidance," he complains. "A lot of draft plans came out before PPS12. Many local authorities have just ploughed on hoping that they will get through LDF examinations, but they have not. There have been some spectacular high-level failures."

North of the border, planning lawyers are facing an additional layer of complexity following the Scottish National Party's success in this month's elections. While a second Forth crossing has support from the main parties, a number of major infrastructure projects are up in the air. "The overall budget is there but the priorities may change," says Ann Faulds, head of planning law at Dundas & Wilson.

"The political situation will create uncertainty for developers and authorities are looking at how to take things forward. At worst, it might make it more difficult to get controversial permissions through the system," adds Faulds. "But it is good that we going into an era of consensus politics. It may be a better fit with the community engagement agenda in the Scottish Planning Act."

Some aspects of the planning system are speeding up, lawyers report. "Some local authorities have been more efficient and outsourced work to external lawyers to get things moving," says Howorth. Ford has seen a quickening of pace in getting compulsory purchase orders through. "Inquiries have been scheduled within five months of an order, which is quite impressive," he notes.

But development in some areas gets very bogged down, says Denton Wilde Sapte partner Stephen Ashworth. He cites the Thames Gateway, where schemes have to be negotiated with the mayor of London, Transport for London, Design for London, the local authority, the Environment and Highways Agencies and two urban development corporations. "It ends up being a mess. It is not a case of too many cooks spoiling the broth but more that they cannot even decide on the recipe," he argues.

Ashursts partner Tony Curnow finds applications taking longer and longer - even in east London, where there is the impetus of the Olympics. "There are so many things to go through to get permission. The section 106 agreement for Stratford City is 250 pages long. I do not think anyone is being pedantic. It is just the structure of getting final agreement," he believes.

Lawyers are not optimistic that the planning white paper will make much difference to the speed or complexity of the system. "We need a period of bedding down of the 2004 act rather than a series of measures that will be overlain on a system that is already barely understood," Ricketts insists.

"It is a tragedy that we have a white paper so soon after the last reform," says Ashworth. "Half of the LDFs examined so far have been judged unsound and that is not because planners have not tried. It is because they have not understood, or the government office has not understood, what they are supposed to do." The white paper could put plans back even further, he fears.

Curnow is similarly pessimistic about further change. "We have heard any number of times that the system will get quicker and year on year it gets slower. I will believe it when I see it," he maintains. Pugh complains that the government brings out another idea to simplify planning every 12 to 18 months. "The one that amused me most was when it said that national policy should be streamlined. That was the point of the 2004 reforms," he reflects.

Herbert Smith partner Matthew White agrees. "Every time they 'simplify' the system, it gets more complicated. Planners will be forgiven for being cynical," he says. DLA Piper partner Howard Bassford is a rare voice of optimism. "Provided the government gets it right, the changes proposed should make the system more straightforward," he contends. He predicts a rise in planning applications should it succeed.

Solicitors have their own practical ideas for resolving the problems. Ricketts calls for guidance on a minimum level of documentation that would be manageable for local authorities and communities. "I really do not see who gains from delivering a lorry load of lever-arch files to a local planning authority. Planners have not got the resources to deal with it, so it lengthens the process," he says.

Paranoia about legal challenge is justified, he believes. "Unless developers do each issue to death, any could come back and haunt them in the High Court," he points out. "There needs to be guidance to remind people that the point of an environmental assessment is to arrive at an assessment of the main issues, not analyse every last detail of every issue."

Ford thinks that inspectors should be able to commission their own sustainability appraisals, rather than the present system of local authorities doing one at each stage and then objectors following up with their own. "This would save a lot of time because the amount of argument over sustainability appraisal is out of kilter with the importance of the document. Procedurally it is an easy way to fall down," he says.

White would like to see more flexible powers to amend consents. Having to submit a new application when things change causes a great deal of confusion, he says. "It is ludicrous that there is no way of amending a permission. Designs evolve. You do not finish the design process the day they write the date on the planning permission, but the system thinks you do," he laments.

The planning system is at a critical stage and many solicitors fear that the climate of uncertainty could bring the whole process to a grinding halt. "This country is going through a phase of physical renewal that we have not seen for decades," says Ashworth. "The last time was in the 1960s but they buggered it up. I pray we are not doing the same."

TOP LAW FIRMS 2007

RANK
07 06 FIRM

01 01 Berwin Leighton Paisner
02 03 Eversheds
03= 05 Denton Wilde Sapte
03= 06 Lovells
03= 04 SJ Berwin
06 02 Herbert Smith
07 08= Linklaters
08 07 Ashursts
09= 13= CMS Cameron McKenna
09= 10 DLA Piper
09= 08= Wilbraham & Co (Cobbetts)
12= 20= Bond Pearce
12= 13= Shoosmiths
14= 11= Burges Salmon
14= 16= Wragge & Co
16 16= Walker Morris
17= 11= Bircham Dyson Bell
17= 20= Hammonds
17= 13= Nabarro Nathanson
20= 20= Clifford Chance
20= 16= Lawrence Graham
22= 25= Mills & Reeve
22= 28= Osborne Clarke
24= 25= Marrons
24= 28= Richard Buxton
26 20= Pinsent Masons
27= 16= Bevan Brittan
27= 20= Clarke Willmott
27= 32= DMH Stallard
27= 32= Forsters
27= Taylor Wessing
32= Addleshaws
32= Charles Russell
32= Davitt Jones Bould
32= 32= Dickinson Dees
32= 32= Freshfields
32= Leigh Day
32= 32= Macfarlanes
32= Sharpe Pritchard
32= 32= Stephenson Harwood
41= Beachcroft
41= Halliwells
41= 32= Jones Day
41= 32= Lester Aldridge
41= 25= Norton Rose
41= 32= Rees & Freres
41= 32= Ward Hadaway


TOP SCOTTISH FIRMS 2007

RANK
07 06 FIRM

01= 01 Brodies, Edinburgh
01= 02 Shepherd & Wedderburn, Edinburgh
03= DLA Piper, Edinburgh
03= 03= Dundas & Wilson, Edinburgh
03= 08= Paull & Williamsons, Aberdeen
06= 05 Anderson Strathern, Edinburgh
06= 06= Biggart Baillie, Glasgow
06= 03= Maclay Murray & Spens, Edinburgh
06= McGrigors, Glasgow
06= 08= Simpson & Marwick, Glasgow

TOP 10 SOLICTORS

1. MICHAEL GALLIMORE

"He is an unassuming lawyer who spares no effort in his own casework and is building up a really sound planning team."

Current casework: Acting for Argent on King's Cross Central development, acting for Crest Nicholson on Bath Western Riverside, acting for Ballymore Properties on Minoco Wharf redevelopment in London and advising Prudential on its strategic development programme.

2. SIMON RICKETTS

"Always ready to provide first-class, timely advice and has a way of working round problems when the going gets tough."

Current casework: Acting for Multiplex on Mereham new settlement in Cambridgeshire, Warner Estate Holdings and Agora Max on Pallasades in Birmingham, Candy and Candy on One Hyde Park in Knightsbridge, Cathedral Group on Strood Riverside Lands Tribunal proceedings, Kent International Gateway rail freight interchange and Citybranch Ltd on Hale Barns Centre redevelopment in Manchester.

3. PAUL WINTER

"Painstaking lawyer who appreciates more than most that quality is essential in making progress with major developments."

Current casework: Advising on Cricklewood regeneration and Brent Cross extension, Arsenal Football Club on Queensland Road site acquisition, Electricity Supply Nominees on Emersons Green extension in Bristol, Colchester Borough Council on St Botolph Quarter and Land Securities on Old Bailey development in London.

4. STEPHEN ASHWORTH

"He is a breath of fresh air in this profession because he has an unconventional approach that gets his team buzzing."

Current casework: Advising on Eastern Quarry development for Dartford Borough Council and Kent County Council, Grosvenor on town centre redevelopment proposals in Preston, Milton Keynes Partnerships on agreements for 20,000 houses in growth area, West Northamptonshire Development Corporation on planning tariffs and major housing proposals in Truro.

5. TIM HELLIER

"The leading light in the leading practice, he has the human touch that helps him to put his clients at their ease."

Current casework: Acting on Canary Wharf mixed-use expansion, Tesco proposals in Woolwich, Dartford and Sittingbourne, Liverpool City Council on housing market renewal, acting for Nirex on radioactive waste disposal, Cibitas on residential scheme in New East Manchester, advising on Stevenage and Bracknell town centre development programmes.

6. RAY JACKSON

"Knows the London commercial market inside out and is putting that expertise to good use in some high-profile projects."

Current casework: Acting on Heron Tower in Bishopsgate, Land Securities on 20 Fenchurch Street proposal, KPS on Smithfield Market renewal, hotel in Knightsbridge, Crown Estate on Quadrant development at Piccadilly Circus and Native Land on Bankside residential scheme.

07= TIM SMITH

"Another well-liked lawyer who is successfully making his presence felt within the context of a very strong planning team."

Current casework: Land Securities on Victoria Transport Interchange in central London, P&O and Shell on London Gateway proposals, Dragon LNG Ltd on liquid natural gas terminal at Milford Haven, Westfield Shoppingtowns on White City development, Tesco and George Wimpey on sites nationwide and advising Royal Bank of Scotland on funding for Southgate mixed-use development in Bath.

07= MATTHEW WHITE

"Young lawyer who is adept at thinking on his feet and seems able to take emerging technical issues on board with aplomb."

Current casework: Acting for EDF Group on nuclear power stations, Lend Lease on Olympic Village, BSkyB on headquarters redevelopment in Osterley, Stratford City, Stanhope and Schroders on Croydon Gateway, Royal Festival Hall regeneration on South Bank and London Development Agency on Crystal Palace Park.

9. TONY KITSON

"He manages to bring a sure touch to planning advice for his corporate clients on a growing range of development types."

Current casework: Advising BAA on Stansted runway, Quinn Group on glass manufacturing plant at Elton in Cheshire, numerous residential developers, Wellcome Trust on South Kensington Estate, Sainsbury's on Wolverhampton town centre, Centros Miller on Tricorn redevelopment in Portsmouth and Dover Harbour Board on Western Docks ferry port.

10. TREVOR GOODE

"He is equally at ease with public and private sector clients and is becoming one of the leaders in land assembly know-how."

Current casework: Advising Grosvenor and Liverpool City Council on Paradise Project, Stockport Metropolitan Borough Council on Bridgefield town centre scheme, Oxfordshire authorities on Didcot urban extension, Tesco on projects in Midlands and London and Vale Royal Borough Council on Northwich town centre mixed-use scheme.

HIGHEST RATED PLANNING SOLICITORS 2007

RANK
07 06 SOLICITOR FIRM

01 02 Michael Gallimore Lovells, London
02 03 Simon Ricketts S J Berwin, London
03 01 Paul Winter Eversheds, London
04 04 Stephen Ashworth Denton Wilde Sapte, London
05 09 Tim Hellier Berwin Leighton Paisner, London
06 13= Ray Jackson Linklaters, London
07= 06 Tim Smith Berwin Leighton Paisner, London
07= 05 Matthew White Herbert Smith, London
09 07= Tony Kitson CMS Cameron McKenna, London
10 13= Trevor Goode Berwin Leighton Paisner, London
11= 07= Tony Curnow Ashursts, London
11= 11= Iain Gilbey Shoosmiths, Birmingham
13= 15= David Brock Mills & Reeve, Cambridge
13= 19= Ian Ginbey Macfarlanes, London
13= 10 Brian Greenwood Taylor Wessing, London
16= Rod Bull Eversheds, Birmingham
16= 15= Michael Cunliffe Forsters, London
16= Martin Evans Nabarro Nathanson, London
16= 19= Peter Wilbraham Wilbraham & Co (Cobbetts)
20= Stuart Andrews Eversheds, Derby
20= 15= Trevor Blaney Lawrence Graham, London
20= David Goodman Hammonds, Leeds
20= 19= Ian Trehearne Berwin Leighton Paisner, London
20= Chris Williams CMS Cameron McKenna, London
20= 19= Andrew Williamson Walker Morris, Leeds
26= 19= Howard Bassford DLA Piper, London
26= 26= James Good Berwin Leighton Paisner, London
26= 26= David Hardy Wilbraham & Co (Cobbetts)
26= 19= Patrick Robinson Burges Salmon, Bristol
26= 11= Patrick Robinson Herbert Smith, London
26= 15= Pat Thomas Freelance legal consultant
32= Wesley Fongenie Osborne Clarke, London
32= Richard Lloyd Eversheds, Manchester
32= Andrew Thomas Wragge & Co, Birmingham
32= Marcus Trinick Bond Pearce, Bristol
32= 31= Robert Waite Wilbraham & Co (Cobbetts)
32= Stephen Webb Eversheds, London
38= 19= Richard Buxton Richard Buxton, Cambridge
38= 31= David Cox Denton Wilde Sapte, London
38= 31= Nick Engert Clarke Willmott, Bristol
38= Richard Guyatt Bond Pearce, Bristol
38= 26= Dan Hemming Wragge & Co, Birmingham
38= Tim Pugh Berwin Leighton Paisner, London
38= Morag Thomson Marrons, Leicester
45= Tony Allen DMH Stallard, Brighton
45= Julian Boswall Eversheds, Cardiff
45= 26= Karen Cooksley Bevan Brittan, London
45= Duncan Field SJ Berwin, London
45= Kevin Gibbs Osborne Clarke, Bristol
45= Kirsten Hewson Shoosmiths, Southampton
45= Emrys Parry Bond Pearce, Bristol
45= Richard Sagar Walker Morris, Leeds
45= 31= Gary Soloman Burges Salmon, Bristol
45= David Watkins Linklaters, London


HIGHEST RATED SCOTTISH SOLICITORS 2007

RANK
07 06 SOLICITOR FIRM

01= 01 Colin Innes Shepherd & Wedderburn, Edinburgh
01= 07= Bruce Smith Paull & Williamsons, Aberdeen
03= 02= Neil Collar Brodies, Edinburgh
03= Elaine Farquharson-Black Paull & Williamsons, Aberdeen
03= 05= Sandy Telfer DLA Piper, Edinburgh
06= 05= Ann Faulds Dundas & Wilson, Edinburgh
06= 07= Frances McChlery Simpson & Marwick, Glasgow
06= 09= Alastair McKie Anderson Strathern, Edinburgh
06= 04 Murray Shaw Biggart Baillie, Glasgow
06= 02= Chris Smylie Maclay Murray & Spens, Edinburgh