Plan-it Law

Protecting the look of London

Mayor Boris Johnson has today published the London View Management Framework SPG which strengthens and clarifies the polices contained within the London Plan aimed at protecting key views across London of important landmarks and World Heritage Sites.

The London Plan currently designates 26 views across landscapes and landmarks in London.  It seeks to protect them by ensuring thorough consideration is given by the relevant authorities to any development proposals falling within the area of the designated view which would unacceptably interfere and detract from it.  The SPG describes the process and procedure authorities should use when taking account of the ‘views’ as material considerations in determining planning applications.  It also provides specific details on each designated view including how it is to be protected and why.

No Waste of Time

The Coalition Government has not wasted any time in seeking views on how, in this post RSS world, we keep on top of waste policy.

No sooner has DCLG's Select Committee invited submissions to help its "inquiry into the revocation of reginal spatial strategies" -- one of the issues being "the arrangements which should be put in place to ensure appropriate cooperation between local planning authorities on matters formerly covered by regional spatial strategies (eg. waste, minerals, flooding, the natural environment, renewable energy, &c.)" -- than DEFRA today issued its call for evidence for a review of "both the current state of waste policy and waste management in England and what measures should be considered to increase the efficiency and effectiveness of future waste policy in England". 

The terms of reference of the DEFRA review are set out here. 

http://www.defra.gov.uk/corporate/consult/waste-review/100729-waste-review-tor.pdf

Point 17 is particularly interesting. What price localism in the delivery of waste infrastructure?

And the beginning of the Major Infrastructure Planning Unit

As expected, the Government has confirmed its intention to scrap the IPC and transfer its functions to the Planning Inspectorate, with applications being considered by a 'Major Infrastructure Planning Unit'.

The regime is intended to remain much as it is now, but with decisions being taken by ministers in an attempt to give more democratic accountability to the system.

National Policy Statements will be subject to ratification by Parliament.

Not a good day to be a quango - the National Planning And Housing Advice Unit (NPHAU) and the Commission for Rural Communities are to be axed too.

June's Conundrum - Pickles, Localism, the Green Belt and Sustainability

This month's conundrum, from our e-bulletin, Future Perfect?, reads as follows....

On 27 May Eric Pickles wrote to all local authorities confirming the new Government's intention to abolish RSSs, and advising that, with immediate effect, this was to be considered as a material consideration for planning applications. He suggested that regional figures for housing supply were now irrelevant and that local authorities were free to set local targets.

Our conundrum was going to be "what on earth does that mean for core strategies that are being consulted or examined on now?" However, we now have the benefit of the guidance to inspectors, which sets out what they should do depending on what stage of the examination process they have reached and have also been told that a full announcement will be made on 22 June. We look forward to hearing in more detail quite how the government will action their intentions.

In the meantime, perhaps the real conundrum is that even if there are no RSS targets, there is every chance that the planning authority will agree that some new housing is needed, but with an eye on the importance of "localism", where are these new homes to go? Local authorities will be reluctant to give up their green belts and that does not sit happily with the fact that most sustainable sites are on the edges of towns and cities ... ie, in the green belt. Is there a real conflict between localism, housing needs, climate change and sustainability?

THE STATE OF THE PLANNING SYSTEM – WHERE ARE WE NOW? WHERE ARE WE GOING?

I have the privilege of a sabbatical this year, now in fact.  Which seems to me to be a good time to take stock of the existing system as the Coalition Government is proposing major changes.  I’ve written a short article about it which you can read here. Well actually it’s a few pages so I thought a summary might help.  But please do read the full article.

It seems to me that the existing system has some serious operational problems.  The Local Development Framework system was a commendable effort to get people involved but from the beginning was a cumbersome beast, full of acronyms and initials, with involved procedures and rigid front end loading.  The development management system (as we now call development control) is better – it has the advantage of dealing with actual applications for permission, but is weighed down with unnecessary procedures.  The guidance on “validation” of applications has created more hurdles than ever, with long lists of documents to accompany an application being generated by planning authorities.  I still fail to see why we need to have design and access statements, even as recently reformed.  But Killian Pretty is helping to improve development management. 

Then we have the Planning Act 2008, overlaying the Infrastructure Planning Commission and the new way of permitting national infrastructure projects.  I am on record here for exampleas saying this suffers from a democratic deficit – the final decision, balancing the public good,  is taken by technocrats.

And we must not forget CIL.  The Regs came into effect on 6^th April this year.  But it’s got a lot of oddities, some of which I feel sure are mistakes.  And alongside it we see the codification of the policy tests for s.106 agreements.

So what does the Coalition propose?  Local decision making and abolition of RSSs, abolition of the IPC and introduction of democratic accountability to the permitting of major infrastructure, financial incentives to accept new development, a presumption in favour of development on non-designated land,  restrictions on the grounds of appeal and the creation of a third party right of appeal.  And the replacement of the tariff and scaling back of s.106.

Apart from the commitment to local decision making it’s difficult to find a principle or unifying thread in these major changes. 

I applaud the changes to the infrastructure permitting system.  But do we really think local authorities will volunteer to take the housing needed to deal with rising numbers of households?  Third party rights of appeal will simply gum up the system and be good for lawyers (in the short term).  Opponents of development already use judicial review.  And that is costly.  It also fails to understand that there is still a presumption in favour of development (albeit qualified).  A third party appeal right fails to understand the basis for the system.

The change to the grounds of appeal will make the development plan absolutely supreme, with no room for anything else.  Whilst in theory authorities will still be required to have regard to the plan and material considerations, with conformity with the plan forming the only ground of appeal why will they bother with other material considerations?

Then we have the tariff and CIL.  There are some real problems with the CIL Regs, some of which look like mistakes.  Our posts on the CIL category of www.plan-it-law.comdraw attention to some (not all).  For example the provisions designed to prevent double recovery can be circumvented with just a little ingenuity and care.  I suggest a better way in the main article (and I did so to DCLG/ODPM when Circular 5/05 was being drafted). I have two pleas for change on CIL and s.106 – that the straitjacket of s.12 Planning and Compensation Act 1991 be removed and for any change to be underpinned by a good understanding of the principles and law of the existing system.

In fact that is my plea for any reforms – get a good understanding of the current system first, and have a coherent set of principles underlying the changes which mesh with the existing system.

I am going to read the Uthwatt Report on sabbatical. Many people look at bit blank at this point, but it was the report, written during the Second World War, which led to the modern planning system.  I have never read it before but I am struck already by its terms of reference which included “To advise, as a matter of urgency, what steps should be taken now or before the end of the war to prevent the work of reconstruction thereafter being prejudiced.”

That was our last coalition government.  I’ll let you know what Uthwatt said when I am back in August.

David Brock

What did the Queen say about planning?

The Queen's speech today announced a Bill to devolve powers to councils and neighbourhoods and to give local communities control over housing and planning decisions.  This is the core of the Decentralisation and Localism Bill.  It will make major changes to the planning system:

• Regional Spatial Strategies will be abolished
• Decision making powers for housing and planning will be returned to local councils
• The Infrastructure Planning Commission will be abolished.  It will be replaced with "an efficient and democratically accountable system, fast track, for major infrastructure projects"

Less directly, there will be powers for local people to demand referendums and new trusts to make it simpler for communities to provide homes for local people.

What does this add up to?  It was all well trailed in the Conservative Open Source Planning document before the election.  But as Liz Peace from the British Property Federation said today "We need to be realistic about how much power we can devolve to councils...".   There are questions about how realistic it is to expect councils to volunteer to take the levels of housing envisaged in Kate Barker's report without an RSS or something like it.

The abolition of the IPC is to be followed with its replacement by a new democratically accountable system. One of the issues with the IPC is what I dared to call the democratic deficit - see my post here from February - and I expect that the level of accountability will be that the Secretary of State will actually take the decision. Of course the Labour Government  said it wanted to get politics out of that final decision. There might have been mixed motives for that - it removes the opprobrium from the politicians who can say "but it wasn't my decision".  But will the Coalition Secretaries of State be strong enough to take those unpopular decisions. 

Will this new system be the one for nuclear power stations?  See my post of yesterday for what that might be and some issues.  Or is nuclear to go through the normal system so that Chris Huhne at DECC isn't the Secretary of State having to take the decision to grant under the IPC's replacement?

And lastly what will happen to Sir Michael Pitt and the new employees of the IPC, which opened its doors for applications less than three months ago?  The offices of the Planning Inspectorate are just next door in Bristol.

The Coalition Programme for Government - things about planning in unexpected places

Most of the proposals to amend the planning system are to be found in the Communities and Local Government section of the Coalition Programme published last week. (Incidentally, small moan to anyone from HMG who is reading this, please could we have dates on documents?  This one says it's May, giving a choice of 20 days, the Coalition Government not being in place for the first 11).

However, there are some interesting nuggets elsewhere in the Programme.  I thought I'd draw attention to some of them, lest they be lost.

The presumption in favour of sustainable development is to be found in the Environment Food and Rural Affairs section. No surprise of course on the presumption which was announced in the Conservatives consultation Open Source Planning, but odd placing.

Energy policy is clearly going to be important.  The lights will go out in 2017 unless we go nuclear was what I was told with passion by an Hon Member at the DECC Select Committee hearing in February . Renewables become even more relevant than before, I suggest, in the Coalition. So in the Energy and Climate Change section we see that the target for renewables is to be increased, subject to the DECC Select Committee advice, and that there will be a huge increase in energy from anaerobic digestion.  Community owned renewable energy schemes will be encouraged, with communities keeping additional business rates.

This section also gives detail on the permitting process for nuclear. It will be "the normal planning process" under a new National Planning Statement.  So farewell the IPC? At least for nuclear.  But I do wonder about "the normal planning process" for nuclear.  Before the IPC that would have been an application straight to the Secretary of State under the Electricity Act 1989, s.36, which results in a deemed permission. No planning authority has ever received a planning application for any sort of power station over 50 MW, let alone a nuclear power station (they come in at about a GW, that's 1,000 MWs).

The Transport Section reveals that there will be a high speed rail network as part of the low carbon economy, in phases given the financial constraints.  And the tax section heralds an increase in environmental taxes, which could have an influence on what is developed.

And lastly, in the political reform section, planners and developers might want to note two elements.  First, any petition with over 100,000 signatures will be eligible for formal debate in Parliament; the petition with the most signatures will be eligible for a Bill.  So anti-development petitions might gain in popularity and weight. And second there will be a public reading stage for bills, to give the public an opportunity to comment online.  Now I seem to remember some idea that MPs were elected to debate proposed new laws as representatives of their electorate.  But now we find the electorate has to do the work itself.  Am I alone in wishing for a return to the days when Governments governed, and if they didn't do it well were voted out?  Consultation uses enormous resources and I rather doubt that responses are being properly read.  I have blogged about some pertinent examples on the introduction of CIL earlier in this link .  The Labour Government introduced consultation on draft bills and in my experience as Chair of the Law Society's Planning & Environmental Law Committee it made getting changes to the actual bill even more difficult.

Tory plans for planning

I have just been through the "Open Source Planning" green paper published yesterday by the Conservatives. If any reader would like me to send them our "quick and dirty" summary please e mail me, but the headlines seem to be; the end of regional planning with "local communities" having much more say; a curtailing of the right of appeal - but the addition of the right of third parties to appeal against the grant of permission; the introduction of a presumption in favour of sustainable development; the apparent demise of "material considerations"; the ability for developers to "compensate" local people so as to avoid opposition to their schemes; IPC to be scrapped in favour of a similar process within PINS with the Secretary of State taking decisions; CIL to be scrapped in favour of a local tariff doing the same thing;"flexible zoning" and other ideas for extending permitted development rights (including a right to change the use of any building to an educational use) and the  Human Rights Act to be scrapped and replaced by a British Bill of Rights

January's Conundrum - planning and IPPC

This month's conundrum from our e-bulletin, Future Perfect?, reads as follows, as written by Oliver Ennis....

A recent case (Ian Frank Harrison v (1) SS Communities and Local Government (2) Cheshire West and Chester Council (2009)) has added further fuel to the debate about the relationship between the planning system and the integrated pollution prevention and control regime. The case emphasises that the regimes are distinct and serve different purposes. The fact that an environmental permit has been granted does not prevent a planning decision maker from concluding that a development will have an unacceptable impact on local amenity. This is a salutary tale for developers. PPS23 advises that both regimes should complement each other and that developers should give consideration to twin tracking applications. Do you think the current division of responsibilities makes for effective decision making?

PPS4

There is an interesting point to be made in policy EC15 within the new PPS4. This relates to the sequential test and the way in which "edge of centre" sites will be viewed. Under the old PPS6, edge of centre had a clear advantage over out of town - and if there were more than 1 competing edge of centre site, then the respective connections with the town centre would determine advantage between them (para 2.44). Under EC15, the significance of good pedestrian connections to the town centre is greater - on my reading, edge of centre sites without good connections gain no preference so would have no sequential advantage over out of town sites.