East Midlands CouncilsSeminar on Delivering Localism
19 July 2011Discussion by Brian Hurwitz, Partner
Localism (nee development) Management – pitfalls and loopholes
Tel: 020 7405 4600
Contents
1. Localism Bill2. The budget and the growth agenda3. Development management4. The government’s proposed national planning policy
framework5. Summary of pitfalls and loopholes6. Some updates7. Conclusion
Localism Bill
Brief overview Introduced in Autumn 2010 – still being debated Awaiting report stage in House of Lords (5-15 September
2011) Various proposed amendments and changes Covers a wide range of topics of which the main ones are
listed on the next slide Anticipated Act date approximately October/November
2011
Specific areas covered (not an exhaustive list) Local authorities to be given general powers of
competence New governance arrangements Pre-determination Changes to standards Pay accountability Community empowerment and local referendums Community right to challenge Abolition of regional strategies Community Infrastructure Levy Neighbourhood planning Enforcement Nationally significant infrastructure projects (abolition of
IPC) A number of issues concerning housing
Matters specific to my discussion Neighbourhood planning Abolition of regional strategies (see development
Management) Enforcement ( - ditto-
) Abolition of the IPC Pre-determination
Neighbourhood planning Neighbourhood Development Plans and Neighbourhood
Development Orders Clause 96 and Schedules 9, 10 and 11 NDP: a plan which:-
sets out policies re the development and use of land in a particular neighbourhood area which is specified in the plan
Who can prepare draft plans? Parish Councils or if there is no PC, a Neighbourhood
Forum LPAs may designate another body a “Neighbourhood
Forum” if:-i. it exists to further the well-being of people living or wanting
to live in the area;ii. membership open to individuals living or wanting to live
there;iii. at least three members live there; andiv. there is a written constitution
Neighbourhood Development Orders May be initiated by a PC/Neighbourhood Forum Paragraph 2 of Schedule 9: NDO is an order which grants
planning permission in relation to a particular neighbourhood area specified in the order:-
a) for development specified in the order orb) for development of any class specified in the order
NDPs and NDOs subject to detailed scrutiny Main points:-
PC/NF proposes NDP/NDO to LPA LPA considers NDP/NDO to decide whether it should be
submitted for independent examination On examination, Examiner will consider whether NDP/NDO
is:- appropriate having regard to national policy general conformity with local development plan compatible with EU obligations
Examiner will report on the proposal. The report may recommend:- that the proposal should/should not be the subject of referendum whether modifications needed so that proposal can go to
referendum and whether referendum area should be extended beyond
neighbourhood area
LPA must consider whether the proposal is:- appropriate having regard to national policy in general conformity with local development plan compatible with EU obligations
If LPA satisfied these tests are met there must be a referendum. If more than half of those voting vote in favour, LPA must bring the NDP/NDO into effect, but not if doing so would breach EU obligations/Convention rights
NDPs and NDOs cannot cover the following development:- minerals waste nationally significant infrastructure projects (e.g. power
stations/wind farms of more than 50MW and major projects requiring EIAs under EU law)
Abolition of the IPC Planning Act 2008 introduced “development consent”
(“DC”) DC, which removed need for separate consents, decided
by IPC No subsequent decision by SoS Government to produce National Policy Statements
(“NPS”) on topic in question (e.g. nuclear power) NPS subject to parliamentary procedure IPC decision based on NPSs Changes under the Bill:-
IPC replaced the “Major Infrastructure Planning Unit” (“MIPU”) (Clause 107)
MIPU appointee/panel to make a recommendation to SoS SoS makes decision NPSs subject to greater parliamentary scrutiny
Pre-determination Clause 13 Pre-determination is where someone has a closed
mind, with the effect that they are unable to apply their judgment fully and properly to an issue requiring decision
Decisions judged to have been pre-determined have been quashed
If a councillor has given a view on an issue, it does not follow that the councillor has a closed mind on that issue
So if a councillor has campaigned on an issue or made public statements about their approach to an item of council business, he or she will be able to participate in discussion of that issue in the council and to vote on it if it arises in an item of council business requiring a decision
So long as they make any decision on planning merits only
The Budget and the Growth Agenda
The proposed planning reforms from the government “The Plan for Growth” Accompanied March 2011 budget “An urgent call for action The following are some of the impacts on the planning
system:- Presumption in favour of sustainable development
Introducing a powerful new presumption in favour of sustainable development (so that the default answer to development is “yes”)
Localise choice about use of previously developed land, removing nationally imposed targets while retaining existing controls on green belt land
National planning policy framework to be produced – deliver more development in suitable and viable locations
Introduce new powers to enable business to bring forward neighbourhood plans and neighbourhood development orders
Proposals to extend PD rights Pilot new land auction model starting with public sector land Ensure all planning applications and appeals processed within 12
months – fast track major infrastructure projects
Written Ministerial Statement: Planning for Growth: (23 March 2011 issued by the Minister of State for Decentralisation Mr Greg Clark) This is referred to in the budget and sets out the steps the
government expects LPAs to take “with immediate effect” (emphasis added) Top priority = promote sustainable economic growth and
jobs Government expects development and growth possible
except where this would compromise key sustainable development principles set out in national planning policy
LPAs are told that they should press ahead without delay (emphasis added) to prepare up to date development plans
Applications that secure sustainable growth are to be treated favourably (consistent with policy in PPS 4)
SoS will take these principles into account when determining planning applications (i.e. decisions on appeals by Inspectors and by the SoS)
Particular weight will be attached to the need to secure economic growth and employment
Introduction Previously known as development control Read this against various recent planning policy
statements Localism Bill proposed change to Use Classes Order Localism Bill on determination of planning applications
Development Management
The concept of development control is taken to mean how the council as local planning authority determines planning applications and deals with related matters, such as enforcement of planning control
Local planning authority means unitary authorities (e.g. London boroughs and other authorities which have unitary status)
In non metropolitan areas this means usually a two tier system involving the county council and the district council (unless there is a unified authority)
Broadly covers functions within Part III of the Town and Country Planning Act 1990
Also relevant for listed building and conservation area controls
Procedural advice now contained in consolidated Town and Country Planning (Development Management Procedure) (England) Order 2010 – “DMPO” previously the General Development Procedure Order or GDPO – have to get to terms with the new acronym!
Determination of Planning Applications LPA must have regard to the provisions of the development
plan so far as material to the application and to any other material considerations (Section 70(2) of the TCPA 1990)
Section 38(6) of the Planning and Compulsory Purchase Act 2004 – if having regard to the development plan, the LPA must determine the application in accordance with the plan unless material considerations indicate otherwise
What is the development plan? Outside of London it is the regional strategy and development plan documents taken as a whole which have been adopted or approved
In many cases this still means saved local plan policies prepared under the old system (pre 2004 Act)
But what of the regional strategy? See next three slides
Hasn’t the Regional Strategy been Abolished? 27 May 2010 – SoS letter says the government proposes to
abolish regional strategies States that LPAs and Planning Inspectorate should have
regard to letter as a material planning consideration 6 July 2010 – SoS announces revocation of regional strategies
“with immediate effect” CLG “Chief Planner” letter of the same date giving more
guidance – states that the guidance covers the period between “revocation of regional strategies and legislation to abolish them all together”
Above guidance confirms that requirements to provide a five year land supply remain
Legislation to follow via Localism Bill
Legal challenge by Cala Homes 10 November 2011 – High Court finds that SoS revocation of
regional strategies unlawful “Chief Planner” letter of the same date states that Localism Bill
due to be introduced into Parliament before Christmas States that LPAs and Planning Inspectorate should still have
regard to 27 May 2010 letter in any decisions Further legal challenge to legality of this announcement 7 February 2011 – judgment by the court – SoS was entitled to
advise LPAs that the proposed revocation of regional strategies was to be regarded as a material consideration (paragraph 78 of judgment of Lindblom J)
Court of Appeal (27 May 2011) uphold High Court decision 27 May 2011 letter addressed to PINS/LPAs who could
“sensibly interpret” it Weight to proposed abolition of regional strategies = matter
for decision maker Suggests LPAs give clear and cogent reasons if decide to give
some weight to government’s proposal to abolish regional strategies when dealing with planning applications
Other Material Considerations These comprise a series of matters generally held to be
material considerations by the courts (Stringer v MHLG [1971] quoted in paragraph 11 of PPS 1: General Principles)
The government’s statements on planning policy are material considerations – PPS 1: General Principles, paragraph 13 and a quote from EC Grandsen & Co Ltd v SSE and Gillingham BC [1985]
More recent planning policy statements give more emphasis to policies and these are written as development management policy
E.g. paragraph 3 of PPS 4 that the development management policies contained in the PPS can be applied directly by the decision maker when determining planning applications (similar statement in paragraph 3 of PPS 5)
The presumption in favour of sustainable development 15 June 2011 – government’s wording on presumption of
sustainable development, i.e. This is at the heart of the planning system Covers plan making and decision taking LPAs should plan positively for new development Approve all individual proposals where possible
Changes to development management to be made via Localism Bill Retrospective planning permission – allows enforcement
action to be taken against breach of planning control where the time limits for taking action have expired and the breach has been concealed
Procedure for obtaining a planning enforcement order from the Magistrates’ Court
Proposed amendment to Section 70 of TCPA to require consideration of finance considerations as far as material to the application
Finance considerations will include New Homes Bonus and Community Infrastructure Levy
May 2011 draft produced by practitioners and advisory group
Role of NPPF is to set out government’s economic, environmental and social priorities for England and explain how planning can help ensure a pattern of development that matches these and meet local aspirations
Objectives include sustainable development which plans for:- prosperity (economic role); people (social role); places (environmental role)
The Government’s Proposed National Planning Policy
Framework (“NPPF”)
Objectives state that in principle there is no contradiction between facilitating increased levels of development and environmental role of planning
Sets out what should be contained in local plans and neighbourhood plans
Sets out primary objective of development management being to foster the delivery of sustainable development, not to hinder or prevent development
Also refers to presumption in favour of sustainable development to be applied in favour of sustainable development
Further objectives and proposals on other areas, e.g. transport, housing, green belt, climate change, natural and local environment, heritage
-Change to planning over the last few years, e.g. New style local development frameworks (per 2004 Act)
how many have passed the soundness test? Transitional stage (therefore two systems still exist) CIL – introduced by Labour CIL – views of the Conservative and Liberal Democrat
parties CIL – seems to be retained after all Changes to development plan system, particularly removal
of regional plans Litigation arising from the above Changes to PPS 3 – June 2010 (to address so called
“garden grabbing” and remove reference to minimum housing densities)
Summary of Pitfalls and Loopholes
June 2011 PPS 3 (new definition of affordable rented housing)
Other previous consultations not yet finalised, e.g. merge PPS 1 on climate change and PPS 22 on renewable energy
Localism Bill – heralds neighbourhood plans, community involvement, etc
But March budget – growth now the priority Presumption in favour of sustainable development (have
we been there before?)-Proposed national planning policy framework-How is it going to be feasible to translate a series of
planning policy documents into one comprehensive light touch version?
-What does this all mean for development management?
With regard to amendment to Section 70, explanatory notes to Localism Bill said that this is not intended to change the current position about what lawfully can or must be taken into account in determining a planning application
Note also says that this is not intended to ascribe any particular weight to local finance considerations
These remain matters for the decision maker Two separate referendums to be required for
neighbourhood planning documents drawn up by business led neighbourhood forums to be adopted (“Planning” magazine 1 July 2011)
Response to proposed presumption – welcome by developers/house builders?
Complicated/needs improvement (comments by RTPI/CPRE (see “Planning” magazine 1 July 2011 pages 6 and 7))
Updates
I have highlighted a number of policies, particularly those on localism and growth
These appear to pull in opposite directions Will need to analyse full detail once the final version of
the national planning policy framework is in place In the meantime, probably expect more Cala style
litigation
Conclusions
