Plan-it Law

Protecting waste management sites - a new dawn?

Have practitioners come across waste management sites being threatened by inappropriate nearby development because either there were no or inadequate policies to protect those sites? 

We have found that a number of LPAs keen to allocate, say, residential sites are often embarassingly unaware of their proximity to or potential effect on waste management facilities. 

One of my own cases involved a 500-house allocation very close to an old but operational landfill site (surely the large gas plant should have been a hint?) with additional sorting and composting activities.  The LPA had not considered the protection policy in the (then) Waste Local Plan because it was not the waste planning authority -- it just didn't "click".  The waste planning authority said it had not been aware of the proposal, so had not drawn the WLP policy to anyone's attention.

It's not of course just a matter of dealing with actual nuisances but once a community knows of the existence of a nearby waste facility most nuisances, real or imagined, caused by it or not, are laid at its door.  The operator has to find the means to deal with the subsequent barrage of complaints. 

This is not the "positive and proactive delivery of sustainable development" to which DCLG refers in its recent Progress Report on the Killian Pretty Review.

In the East of England these problems might soon be a thing of the past.  We understand that a new RSS-level plan policy is being mooted. This would safeguard waste management sites by introducing a presumption that sensitive receptor uses should not be permitted within 200m of waste management facilities and a requirement that proposals within 500m should be the subject of prior consultation.   Sounds like a useful step in the right direction.

Prince of Wales turns to Joe Public the architect

Even allowing for the fact that it's August the Prince seems to be getting quite a lot of column inches for his views on architecture. Following Chelsea Barracks, we saw a report of his threat to resign as patron of the National Trust unless his architectural views were followed.  The Times reports here that he is calling for more democratic planning laws to allow the public to shape the design of new building developments. All this actually amounts to is Enquiry by Design (though I have never understood why it isn't Design by Enquiry as I hope the object is a design rather than a report).  The Prince is seriously off the pace here. Consultation in planning is generally reckoned to be overdone. The Killian Pretty report recognises this.

“People feel very disenfranchised by the planning system,” said Hank Dittmar, chief executive of the Prince’s Foundation.  But there is little evidence that the extensive consultation and enfranchisement under the local development framework process is producing a sense of widespread popular ownership of the resulting plan. Developers report that the usual suspects turn out to charettes and Enquiry by Design and it doesn't mean their opposition goes away.

I thought one of the more mature remarks about planning came from the unlikely quarter of Ed Miliband, commenting when the owner of the wind turbine factory on the Isle of Wight cited the way planning laws deal with energy projects as a reason for closing the factory. The Energy Secretary hinted on the Today programme that it had something to do with our national antithesis to change. Or as Kate Fox puts it in Watching the English, our approach if we went to a demo would be summed up with the chant "What do we want?  Gradual Change. When do we want it? Not just yet".

CIL and trustees

On the basis of the regulations as currently drafted, in the case of bare trusts, the beneficiary will be regarded as the owner rather than the trustees.  In other cases however, as owners of land, trustees will be in the frame for default liability for CIL - even where trust funds in their control do not cover the full extent of the liability. Trustees beware!

Varying s106 agreements

Recently, we have been asked to vary a number of s106 agreements for fairly major development sites where development is well under way and residential freeholders and leaseholders now own individual plots on the site. For a deed of variation to be effective under s106A, all parties against whom the obligations are enforceable must sign up to the variation. In reality, neither the developers or local authorities want these individuals to be a party to the agreement, nor would they be likely to sign up, but not including them as parties creates a risk that the deed and the variations in it are unenforceable.

In these circumstances, we have taken the view that the safest way to effect what has been agreed between the parties is to enter into a completely new deed (under s106) which refers to and continues the obligations in the original agreement where appropriate. Others seem surprised by this approach. A risk is of course taken that pre-existing indivdual owners who do not sign up to the new deed will not be bound, but that is generally acceptable to all parties - at least this deed is enforceable against the parties who do sign up.

Variations to major developments of this type must be fairly common and we wonder what views or experience others have in 'getting round' the s106A requirements.

Drafting for the effect of CIL

As you draft s.106 agreements now, you do so in the knowledge that CIL is in the wings, with the regs likely to be operative on 6th April.  Do you know whether the planning permissions granted now, with a s.106, will be caught by CIL?  Strangely the draft regs have no transitional provisions.  Given that the permission will have been granted taking infrastructure effects into account, and that its unusual to have retrospective taxes we at M&R have been considering drafting which requires planning authorities to repay any CIL they charge in such cases. We have succeeded in getting it accepted in a number of cases.

We'd like to know about other people's experience of this. Who has seen it elsewhere? Does it bother you or your clients?

New regional strategies - draft regulations and policy published

Yet another planning consultation has just been published by the Government. This time the focus is on reforming the regional strategy documents with the intention of creating one single integrated plan.

Regional Spatial Strategies and Regional Economic Strategies will jointly become the regional strategy for each area once the Local Democracy, Economic Development and Construction Bill passes into legislation (this is expected to be sometime in autumn 2009). They will then be revised, combined and replaced by the new single strategy. The new regional strategies will be decided by local authorities through their 'Leader Boards' in partnership with the Regional Development Agency.

There are still some concerns about how effectively the Leader Boards are going to operate in practice, as they are supposed to be streamlined, yet at the same time representative of all the councils within the region. How is it going to be possible in the South East for example, where there are around 80 local authorities, to have a representative of each council on the Board without creating a giant board and slowing down the decision making process? The Government has not prescribed how the Leader Boards will be made up and run within the regions, so this is something the councils will be left to work out on their own.

There have also been comments that the new strategies are going to focus more on economic development and helping the regions recover from the recession than on planning. What do you think?

I attach a link to the consultation here

Infrastructure Planning Commission - are its days already numbered?

The Government said recently that the IPC will be up and running from October. However the Conservative Party has announced that if it wins the next general election, it will abandon the IPC.

The Conservatives propose to 'relocate' the planning team from the IPC to a 'large projects team' within the Planning Inspectorate. They would make recommendations to the Secretary of State, who would have the final say on any projects.

Gordon Brown must call an election by 3 June at the latest, and according to current opinion polls the Conservatives are likely to be in power not long after this. Therefore the IPC could turn out to be a very shortlived planning reform; scrapped before it even has a chance to get going!

Community Infrastructure Levy - securing a piece of the action

Most of the publicity around CIL has been centred on liability and issues such as those relating to what kind of development will be caught. But of course there is the other side to the coin. From the point of view of local planning authorities, and infrastructure providers, one of the benefits of CIL will be that it is better placed to gather in funds to meet the cost or part of the cost of regional infrastructure which under the s 106 regime is more difficult to cover. The statutory definition of infrastructure includes for example "medical facilities" so that we can expect more health service providers to be lobbying for CIL in their area - and to influence the amount which is recovered through CIL and for what purposes.

Although not many local authorities have yet declared interest in bringing in CIL, once it is appreciated that the CIL package includes restrictions on the use of section 106 to recover anything more than is strictly necessary to allow the development (see earlier post on this topic), CIL will become more attractive since the alternative may in some areas be  a severe reduction in s 106 receipts

Community Infrastructure Levy - pre existing planning permissions

I started the week in the realisation that, having returned fresh from my holiday, I simply could not put off any longer reading the consultation paper on CIL and the draft regulations. There are lots of points to note and we'll be reporting on these going forward (as well as preparing a set of consultation responses), but one point stood out for me - this is the way in which CIL relates to development where the relevant planning permission may be issued before CIL is adopted in the relevant area, but where the regulations treat the "time at which planning permission first permits development" (Reg 8(4)) as being after the adoption of CIL.

On my reading of the regulations, development is not "chargeable" for CIL purposes unless a charging schedule is in place at the time planning permission first permits the development. That matches the Government's assurance, reflected in the consultation paper that "planning permission which is granted prior to a CIL charging schedule coming into effect will not be liable" (Consultation paper para 4.19).

However, the way in which draft regulation 7 works means that the "first permits" date for outline permissions is the date of final approval of the last reserved matters application and, for full permissions, where conditions require further approval before development can commence, it is the day on which the final approval is given. The logic of this must be that until all relevant pre commencement approvals are given, the benefit of the permission cannot be fully enjoyed.

But in order to obtain planning permission, the landowner and developer may have had to enter into a section 106 obligation guaranteeing e.g. a set of financial contributions. If CIL is brought in after the grant of permission and completion of the 106, but the "first permits" date is after CIL is effective in the area, then it seems to me that the development is caught by CIL as well as being burdened by the 106.

I spoke to DCLG about this yesterday and they assured me that the intention is to exclude pre existing permissions so they have asked me to set this point out in detail in our consultation response. They did also say however that "it will depend on what the 106 says" which confused me somewhat.

For the time being the safe course must to seek CIL protection clauses in 106s to avoid any risk of double liability. We have had a couple accepted by local planning authorities recently so they are alive to the issue. This will not assist where the 106 has already been completed and the permission issued  - here I would encourage readers who agree with the point to make a response on the consultation paper.

Community infrastructure levy and section 106 agreements

One of the most interesting points in the recent CIL consultation paper is the Government’s proposal to amend section 106 in order to ensure that section 106 agreements can only be taken into account as a reason for granting permission for CIL development if the obligations they secure satisfy the requirements of Circular 5/05. The CIL consultation paper highlights the fact that councils can and do currently seek section 106 obligations which are not essential to allow permission to be granted. It may not be a coincidence that this point comes forward in the consultation paper only a few months after the Secretary of State’s decision, in March 2009, at Knockhall Road, where the application of a standard tariff was regarded as inappropriate in the absence of clear evidence that the relevant obligation was necessary. (see our April Future Perfect? for more on this decision).

It is clear from the consultation paper that, for a number of reasons, the Government now frowns on the use of section 106 to secure "standard charges". This will encourage councils to look more seriously at CIL rather than lose the benefit of recovering charges in this "across the board" way. Where councils already use section 106 to secure standard charges, the proposal is that the ability to continue with this will be phased out in 2 years – the idea being that this gives the council time to bring in CIL.

So will councils carry on bringing forward emerging standard charge policies or will they immediately work towards CIL so as to make sure they have it in place within 2 years? And of course, particularly in light of the Knockhall Road decision, this consultation paper and its clear direction in terms of the use of section 106 in the context of pooled contributions, the opportunity is there for developers who are negotiating section 106s to seek to reduce their burden relying on the circular. But will they appeal to make the point?

We'd welcome your thoughts  on this.