Neighbourhood planning: full steam ahead?

The Housing and Planning Bill seeks to further the Government’s localism agenda, by speeding up the neighbourhood planning process.  The Bill includes provisions to automatically designate neighbourhood areas where Local Planning Authorities (LPAs) do not make a decision in time, and will impose a timetable on the consideration of neighbourhood plans.

The Government is now undertaking a consultation on the contents of regulations to be made under the Bill once it becomes law.  The consultations suggests a range of measures which will further increase the pressure on LPAs to progress neighbourhood plan applications.

Neighbourhood-planNoting that 90% of applications are from Parish Councils, and 90% of those applications are for the whole parish, the consultation suggests removing the ability of local planning authorities to amend the area applied for in these circumstances, unless part of the area was designated for another plan. Rather than having eight weeks to consider this type of application, the LPA would have to approve it as soon as possible.

The consultation suggests a limit of 13 weeks for LPAs to consider applications for neighbourhood forums, where applications are to a single LPA, or 20 weeks where two must be involved, and an exception where part of the area has already been designated.

The consultation also asks whether an LPA should be given five weeks from receiving an examiner’s report to decide whether to call a referendum, unless they disagree with the examiner, or agree more time is needed with the neighbourhood group. The consultation suggests a procedure to notify interested parties where they disagree with the examiner.

The consultation suggests that referenda should be held within ten weeks of the decision to call a referendum, or 14 weeks in a designated business area. It also suggests that following a referendum, the LPA should be required to bring the plan into force within eight weeks.

The process by which the Secretary of State may intervene when requested by the neighbourhood planning group is also suggested.

The consultation also proposes that designated neighbourhood forums be added to the list of bodies consulted by LPAs when they are preparing local plans. Alongside the provision in the Bill which allows neighbourhood forums to request that they be notified when planning applications are made, this increases the sway neighbourhood forums will have as part of the wider planning process.

These measures all emphasise the importance to the Government of neighbourhood plans, and increase the pressure on LPAs to progress applications. While there is clear political intent to involve people in planning decisions at a local level, this comes at a time when LPAs may be struggling with the volume of planning applications and have limited capacity available for the work associated with neighbourhood planning.

It remains to be seen whether these measures will boost the number of neighbourhood plans being made, or whether they will increase pressure on (already) stretched LPAs without significant results.

A better alternative?

buttThe latest of our series focussing on the Housing and Planning Bill considers the controversial Government amendment to “test the benefits” of introducing competition to the processing of planning applications. Amidst the furore surrounding many of the Bill’s provisions, such as those on affordable housing and permission in principle, this one caught many by surprise.

What is proposed?

Applicants in designated areas will be able to choose whether to have their planning application processed by a “designated person” rather than by a specified local planning authority.

As with many aspects of the Bill, Regulations and Development Orders will contain the all-important detail about how this will work in practice. There are a multitude of  issues of principle though.

What does it mean for planning?

Denounced in the Lords as being tantamount to the privatisation of planning, this has the potential to change the face of development control as we know it, if adopted across the board.

However, before the death knell sounds in council planning departments across the country, some key points to bear in mind:

  • the clause makes it clear that determination of the application will remain the responsibility of the specified local planning authority;
  • it is a pilot to test the waters – it will run in specified areas for a specified time period;
  • it will be optional – applicants can choose whom they want to process their application;
  • it will apply only to developments of a “specified description” – we await clarity as to what that means.

While much of the focus (and concern) centres on private sector processing, the government has made clear its intention is to foster innovation amongst councils through competition. Indeed, there will be opportunities for those able to seize them.

Some food for thought

  • Process vs determination – an artificial distinction? To what extent can they be separated, given that qualitative judgments are often required throughout the life of a planning application? Is it really possible to hive off elements which are genuinely process-driven and isolate them from the inherent politicism of planning?
  • A viable alternative? There continues to be much nervousness around the public disclosure of viability information in planning applications. Might private sector processors be favoured on the basis that they may not be subject to the requirements of the FOIA and EIR regimes?
  • It may shift the traditional focus within local authorities away from development control and towards strategic plan-making. Not necessarily a bad thing, particularly with other measures in the Bill designed to incentivise plan-making.
  • Has the government side-stepped the issue of resourcing planning departments? It is committed to encouraging innovation and driving down costs, so will this address long-standing resourcing issues? It also has to be seen alongside the recent Ministerial announcement that the Government will consult on allowing “well-performing planning departments” to increase their fees in line with inflation.

Housing and Planning Bill – London calling

As the Housing and Planning Bill completes its Committee Stage in the House of Commons, this second part of our Q&A considers how the amendments to the Mayor of London’s call-in powers (Clause 110) and the Secretary of State’s power to determine applications (Clause 114) will influence local decisions.

Call-in powers for the Mayor of London

roomWhat are the Mayor’s current powers?

The Mayor can call-in, or direct a local planning authority to refuse, applications of potential strategic importance for Greater London. “PSI applications” are restricted to large scale developments or major infrastructure projects, as defined in The Town and Country Planning (Mayor of London) Order 2008.

What would change?

The wider powers would require London boroughs to consult the Mayor before determining specific applications. Directions to consult would apply to applications for development on safeguarded wharfs or developments that would affect key London sightlines, embodying the promised devolution of control over these developments to the Mayor.

PSI applications would also be broadened, allowing developments to be called-in on the basis of the elements of the London Plan, or other development plan documents. This would allow different thresholds for PSI applications to be set for Growth Areas identified in the London Plan, giving the Mayor greater influence over development in those areas.

Applications direct to the Secretary of State

What would the Bill change?

Clause 114 would expand the Secretary of State’s existing powers to determine planning applications for poorly performing local planning authorities. These are currently limited to “major development”, but the changes would broaden this to any type of application that the Secretary of State may specify.

Why are the changes required?

Clause 114 is part of a range of measures illustrating the Government’s increasingly tough talk on authorities with a track record of slow or poor-quality decision-making. The changes are part of the effort to give teeth, on paper, to the 2017 deadline for Local Plan adoption, and other amendments proposed in the Bill enabling the Secretary of State to take a more active role in plan-making noted in the first part of our Q&A.

Whilst Clause 114 and other sections of the Bill are designed to provide a practical alternative to the local route, there are some missing links:

  • the possibility that some overstretched authorities may happily cede the administrative burden of, and responsibility for, applications to the Secretary of State;
  • the way that a process for obtaining an independent view on objectively assessed needs and housing land supply could do more to promote investor confidence.

Housing and Planning Bill – Local Plan changes

In the first part of our Q&A on the Housing & Planning Bill as it passes through the Parliamentary process, we look at the implications for the Local Plan system of the changes put forward in Clauses 96-100 of the Bill.

Is there a duty to plan?

Not under the Planning & Compulsory Purchase Act 2004 regime. Where local authorities choose to adopt Local Plans, the National Planning Policy Framework (NPPF) already requires that policies ensure that objectively assessed needs will be met in full (or that a failure to do so is justified by environmental constraints, such as Green Belt).

How is need currently addressed where there are local constraints?

There is no freestanding duty on authorities to plan for needs in this way though.  The solution to the ‘larger than local‘ question – of meeting needs beyond a local authority’s boundaries where it does have insurmountable constraints  – is meant to be found in the ‘Duty to Co-operate‘ (introduced to the Planning & Compulsory Purchase Act 2004 regime, via the Localism Act 2011).  There are potential successes. There are outright failures. The following are lacking:

  • bigexplicit incentives (fiscal or otherwise) to plan;
  • any reserve power of final intervention by the Secretary of State.

Where local authorities fail to adopt up to date plans – able to meet needs in full on allocated sites – they instead  face ‘planning by appeal’ via the NPPF presumption in favour of sustainable development.

What would the Bill change?

Clauses 96-100 are intended to incentivise and control plan-making, with the ultimate sanction of the Secretary of State being able reject, write or correct Local Plans. The main changes are in fact limited, but most generously can be seen as a statement of political intent to take responsibility for future performance:

  • Clause 96 widens the Secretary of State’s existing power to make a direction requiring amendments to an authority’s Local Development Scheme (LDS) under Section 15 of the 2004 Act. A direction could require a timescale for “full and effective coverage (both geographically and with regard to subject matter)”.
  • Where Local Plans are being examined, the Secretary of State would also be able to pause and control the proceedings under the proposed changes to ss.20 and 21 of the 2004 Act. He would have a power to direct changes to parts of plans and then release the holding directions, as well as charge the authority his costs for intervening, examining and ‘correcting’ the plan.

What would stay the same?

If some early examples are made, the changes may provide an incentive for authorities with defective plans. They may have little or no real effect though:

  • There is no mechanism to step in and determine the objectively assessed needs required by the NPPF for the relevant Strategic Housing Market Area.
  • Nor is there any basis for the Secretary of State to undertake other evidence base work in a streamlined way.
  • The risk remains that an offer to allow some authorities to continue to abdicate responsibility or avoid sharing in growing pains will be taken up.

Inspector’s decisions and the kitchen sink

The recent decision in Villages Action Group v Secretary of State for Communities and Local Government highlights the need to handle early stage Neighbourhood Plans carefully on appeal.

The Aldingbourne and Westergate Villages Action Group challenged the Secretary of State’s grant of permission for a residential development in Aldingbourne, West Sussex on appeal, on the basis that his inspector had failed to consider the emerging Aldingbourne Neighbourhood plan (or give adequate reasons for dismissing concerns about restricting the expansion of a neighbouring school). The appeal site was earmarked for a school expansion in the emerging Neighbourhood Plan (NP). The NP was at a very early stage – having only been published in first draft after the Inquiry (and so well short of even the start of the local authority publicity period referred to in the PPG).  Reference to the NP by the local authority in its statement of case accepted that it was material but of minimal weight.

The Limit of Reason(s)

Mrs Justice Lang held that the Inspector was not obliged to refer to the draft NP in her decision letter, because it was at a very early stage and attracted little weight, the school expansion idea was hopeless, the documents were not provided to her and little reliance was placed on it at the Inquiry (or afterwards). She also refused to accept that the Inspector had overlooked the NP as a material consideration (despite making no comment on it in the decision).

NPThere are some points to bear in mind on appeal:

  • Unlike planning authorities, the Inspectorate/ Secretary of State have a statutory duty to give reasons.
  • Only ‘main issues’ must be referred to in decision letters.
  • There is no general duty of inquiry on appeal – absent a statutory duty to consider issues, parties must raise issues and evidence sufficiently clearly.
  • The challenge was dismissed, with no error by the Inspector established.

Prematurity vs Conflict of Policies

The judgment implies that prematurity (as opposed to simple conflict with emerging policies) will not be a ‘main/ principal important controversial issue’ worthy of freestanding inquiry or even a real consideration unless the plan is at an advanced stage.  The PPG arguably sets the bar in a different way – preventing prematurity refusal, not consideration per se, where the NP is still embryonic.

As in the Court of Appeal’s decision in the Shinfield Glebe challenge (1), the question could be asked and answered differently – was the early stage NP (and any prematurity effect) genuinely material in the sense that it might have led the Inspector to reach a different conclusion (or was otherwise fundamental)? If so – which is perhaps doubtful on the facts described in the judgment – could it sensibly have resulted in anything other than permission? The PPG suggests not.

(1) where the Planning for Growth ministerial statement, issued after the Inquiry, was held not to have been considered because it was not included in the decision letter.

 

Power to the people?

Localism remains a political priority.  The introduction of Neighbourhood Planning and the ability to nominate Assets of Community Value via the Localism Act 2011 has given communities powerful tools to control development locally.

The importance of Neighbourhood Plans has been emphasised by recent Secretary of State decisions on appeal, with several applications refused where they were considered to prejudice emerging plans, and permission granted for sites allocated in neighbourhood plans before the adoption of local plans. The initial protection provided by designated Assets of Community Value has also been expanded, with some permitted development rights removed from pubs which are listed.

These Localism measures are now being employed by communities to oppose large projects of importance to the Government.  Adjacent to Heathrow Airport, the villages of Sipson, Harmondsworth and Harlington have set up the Heathrow Villages Forum.  Having received a grant of £7,000 to create a neighbourhood plan, they have set the proposed boundary and are planning to submit it to the London Borough of Hillingdon for designation as a neighbourhood plan area.  One of the key issues identified is that the area is “blighted by the spectre of Heathrow airport expansion”, suggesting the likely approach of the Neighbourhood Plan towards expansion.

bridgeMeanwhile, Thames Central Open Spaces, a group opposing the Garden Bridge, have successfully nominated the area of the Queen’s Walk, proposed as the landing site of the Garden Bridge on the South Bank, as an Asset of Community Value.  This means that before the freehold of the land is transferred, or a lease of the land of more than 25 years is granted, in each case to allow the construction of the bridge, the land will first have to be offered to the community.  If a community interest group expresses an intention to submit a bid in the initial 6 week moratorium period, a further four and a half month moratorium will be triggered.  Only after that moratorium can the land be sold or leased.  Although there are ways to avoid the constraints, given the tight timescale for construction of the Garden Bridge, to fit with the Thames Tideway Tunnel construction, this delay could potentially cause issues.

How these local challenges are dealt with on large and politically prominent projects will be an interesting test of the Government’s commitment to Localism.  This is particularly topical following the Queen’s Speech announcement that planning applications for wind farms over 50 megawatts will be decided by local councils rather than under the Nationally Significant Infrastructure Projects regime, and the recent Ministerial Statement requiring proposals for wind energy development to be refused planning permission unless the site is identified in a Local or Neighbourhood Plan, and the proposal has the backing of affected communities.  Are we really entering a phase of power to the people?

Prematurity back in its box again

The publication of the NPPF in March 2012 raised questions about the approach to prematurity.  Refusal on prematurity grounds has been rare, but Nick Boles announced a 12 month extension in July 2014 of the recovery of planning appeals for consideration by the Secretary of State, to include those where a Neighbourhood Plan (NP) has been made or submitted.  It was anticipated that NPPF policy would be applied – with limited weight being given to emerging NPs, becoming stronger as submission, examination and referendum stages had progressed (and depending on how far objectively assessed needs (OAN) are being met).

The issue has been political football, though, receiving a big kick before the General Election.  Three recovered appeal schemes – between 100 and 350 homes – (at East Stafford, Sayers Common and Devizes) were refused against Inspector recommendations.  Early stage NPs trumped inadequate housing land supply.  The fallout helpfully clarifies the correct approach.

imageGroundhog Day?

The NPPF deals with the situation where there is an emerging but early stage plan – and tells decision makers to ‘get on with it’ unless the proposals conflict with the NPPF policies themselves. It says nothing about  ‘prematurity’ – predetermination of plan-making choices by the grant of planning permission. CLG consented to judgment in the Barton Farm, Winchester case in 2012, having refused permission for Cala Homes’ scheme on grounds of prejudice to a Neighbourhood Planning process still in its early infancy.

Since then, the Planning Practice Guidance has filled the gap, accepting that prejudice to very early stage plans should rarely justify refusal, and only where:

  • the adverse effects would clearly, significantly and demonstrably outweigh the benefits;
  • in the case of NPs, they have passed the 6 week local authority publicity period; and
  • there is some fundamental harm to the plan itself as a result.

Judicial clarity

That was not the case at Sayers Common, where the Secretary of State overturned his Inspector’s recommendation to allow Woodcock Holdings’ appeal against the local authority’s decision (to refuse permission – solely on the grounds of prematurity relative to the Hurstpierpoint and Sayers Common 2031 Neighbourhood Plan, HSCNP). The HSCNP had been through Parish and District Council publication stages and, by the time of the Secretary of State’s decision, subject to Examination in Public. It was further down the line than the entry level requirement for prematurity in the PPG.  The Secretary of State refused permission based on conflict with the emerging plan policies and prematurity (despite accepting that Woodcock’s appeal satisfied NPPF policies).

The judgment in the resulting legal challenge helpfully draws a clear line under all this, finding the decision unlawful on the basis that:

  • Emerging plan policies must be treated as ‘out of date’ where there is no 5 year supply of housing judged against objectively assessed housing needs [1] (paragraph 114 of the judgment). That includes emerging NPs, which subside beneath the NPPF policies themselves as a result (unless the NP clearly provides for more than the OAN);
  • Clear reasons are needed for giving meeting OAN less weight than the Neighbourhood Plan process (and for refusing to following the approach recommended in the PPG);
  • The NP adoption test is far more limited than for Local Plans.  Issues in play for planning applications may not even be covered by the NP process. An application cannot, rationally, be premature to a process that is not considering the same issues. For example, the essential question of whether enough land has been allocated to meet OAN.The judge also held that the relevant parts of the HSCNP were inconsistent with the NPPF and so would be unlikely to either survive examination or allow a finding of prematurity.

Eric Pickles also consented to judgment in the East Stafford and Devizes case in the same week as this judgment was handed down

Back to the Future

As such, Woodcock Holdings sets the applecart back upright, confirming that:

  • for conflict to be relied on, emerging policies should be at a significantly advanced stage and consistent with meeting OAN (regardless of whether they are Local or Neighbourhood Plans); and
  • for prematurity to be relied on, the plan-making process itself should be working on the basis of meeting OAN that have been tested by independent examination.

Where an NP has explicitly set out to meet OAN in full (and those OAN have already been found robust at EiP), the situation may be different. Few NPs are prepared on the basis of either a tested OAN or a desire to meet needs in full or over-allocate sites though.

[1] Where there is no objective assessment (i.e. one that has been through the NPPF Examination in Public process and found to be sound), there can be no 5 year supply.

Public participation in planning

The Oxford Planning Law conference took place over the weekend.  One of the main themes was the benefit of public participation in planning, and the failure of the present democratic process to achieve that.   This came into starkest relief in the discussions on neighbourhood plans. It is wrong that neighbourhood forums can be set up by limited groups that then have an ability to monopolise the neighbourhood planning, sometimes not even having an intention to prepare a neighbourhood plan. The blunt nature of referendum questions for a decision about a complex plan is wrong.  The lack of real business or employee voting involvement is wrong.

One point the debate highlighted was the need to think again about how we should take decisions on plans and perhaps even on developments, and whether it is time to look afresh at voting regimes.  Should votes be given to 16/17 year olds?  Should all employees in an area be given votes?  Should business have a vote?  Should families with children have more votes given their investment in the future?   Should votes be weighted?   Should the votes of those immediately adjacent to proposed development sites be given more weight, or maybe less?  Should votes be tied to investment commitments?  Should there be votes available for those outside a district who wish to move there?  Should Councillors have a proportion of the vote as local representatives?  Should a Councillor or other person be asked to represent community, conservation or business interests and have a proportionate vote?  Should there be votes separately on different chapters of plans?  Should there be votes on competing plans?

We have been boringly unimaginative about decision making over the last century.  Is it not about time we had a wider debate about participation and the wider franchise?

Steps to listing an asset of community value

blenIncreasing numbers of sites are being registered by community groups as Assets of Community Value or ACVs.  These range from community pubs to mountains to premiership football grounds – in July, the Lakeland fell Blencathra was listed, and both Anfield and Old Trafford are already  ACVs.   There have been press reports of buildings or land being listed with the aim of maintaining the current use for the local community, but there is some confusion about what listing as an ACV means for the site and the owner.

ACV listing was meant to be about giving a community a chance to purchase an asset if it was viable to do so.  It provides a relatively sensible balance between the interests of land owners and the needs of the community.  The Ivy House in Nunhead was one of the first pubs to be nominated as an ACV.  It was purchased by a community group during the moratorium (see below) and is now run as a co-operative.

ACV status was not meant to be a material consideration in determining planning applications although it was, perhaps, inevitable that it would become one.  The difficulty is that ACV listing might lead to the refusal of consent for change of use where there is no earthly chance of the asset ever being re-used for the community purpose it was listed for.  That is not such a sensible balance.

The table below briefly sets out the listing process, outlining the steps required to list an asset, and the implications of listing on a sale or the grant or assignment of a lease of an ACV.

Listing

Time Action
Day 1 Building or land is nominated to the local authority by a parish council (in England) or a community council (in Wales) or a voluntary or community body with a local connection.
Up to 8 weeks later The local authority has eight weeks to consider whether or not to list the asset, and must keep the owner, any occupier of the land, the nominating group and the parish council informed.
Further 8 weeks The owner of the ACV has eight weeks from the date they were informed of the listing to ask the local authority to carry out an internal review of the decision to list the building or land if they are unhappy with the result.
Another 8 weeks The local authority has eight weeks from the date they received the request to review their decision and inform the owner, unless a longer period is agreed.
28 days If the owner is unhappy with the result of the internal review, they may appeal the decision to the First Tier Tribunal.  They must make the appeal within 28 days of the local authority sending their review decision to the owner.
Five years from listing The local authority must remove ACVs from the list on the fifth anniversary of the asset first being placed on the list, unless it has been removed earlier for any reason, for example as a result of an appeal.

Sale of an ACV

Time Action
Day 1 If the owner decides to sell the ACV, or grant or assign a lease of 25 years or more, they must inform the local authority, subject to some  exemptions.  The local authority will then inform the group who nominated the ACV and publicise the proposed sale.
6 weeks There is a six week interim moratorium period from the date the owner notifies the local authority, during which time a community interest group can make a bid.  During this period, the owner can only enter an agreement to sell to a community interest group.
If no community interest group has made a bid, the ACV may be sold or leased to any party after the end of the six week period.
If a group has made a bid, there is a further four and a half months of moratorium during which the community group can prepare a business plan and arrange finance, and during which time the owner may only sell the ACV to a community interest group.
Further 4.5 months The moratorium period ends six months after the date the owner informed the local authority of their intention to sell or grant a 25 year plus lease.  After the end of the moratorium, the owner may sell to any party within the next year.
One year from the end of the moratorium If no sale is made within that year, a further moratorium process must be followed before the owner can sell or grant a lease of the ACV.

 

Success for Dentons at Rushden Lakes

lakesThe Secretary of State has granted permission for the £50million,
465,000 sq ft retail and leisure redevelopment of Rushden Lakes in Northampton.  Dentons acted for LxB throughout the process, including the 12 day Call In Inquiry held last year in response to demands for the Government to step to a refuse permission by 3 local authorities and several institutional landowners.

Senior Associate Roy Pinnock said “This scheme has been a real road test for the National Planning Policy Framework – are we prepared to say Yes to growth when plans are out of date and no effort is being made to address needs? The Secretary of State’s decision is a helpful milestone and the scheme is one of the most complex to rely on the presumption in favour of sustainable development so far.

Both the circumstances and the scheme are exceptional – the site is over 200 hectares and the scheme has been designed from the outset to make the most of nature conservation, transport and sustainability benefits which are now secured by the planning framework for the site. It has been great to work on a scheme with overwhelming local popular support and support from Natural England, the Highways Agency, local traders and the nearest local authorities.”

Jon McCarthy, of LxB Properties, said: “We have always seen the sense in the Rushden Lakes scheme. It has been refreshing to build such a positive relationship with the local community and so many of the public bodies involved, with the aim of realising the benefits it will bring. Dentons did a fantastic job working with the rest of our team to keep our case on the best footing – the fact that the Inspector and the Secretary of State agreed with our case bears that out”.

Roy Pinnock, Melanie Blanchard and Stephen Ashworth led the process for LxB.