1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar

2014: year of shale for planners

Shale gas exploration will be a defining part of the planning scene in 2014.  In 2013, the Government used new best practice planning guidance and other announcements to help shale prospecting get off the ground.  Centrica’s 25% stake in Cuadrilla’s Bowland Shale operations confirmed that oil and gas majors see sufficient regulatory tailwinds to get involved.  More reforms, investment deals, planning applications and protests will follow in 2014.

Information war

Last summer’s protests over Cuadrilla’s exploration at Balcombe highlighted public concern over the use of hydraulic fracturing – ‘fracking’ – techniques.  Cuadrilla’s unexpected withdrawal from two of its Lancashire sites also confirmed the technical constraints.  Investors feel they have been “getting smashed” in the information battle – culminating in protesters gluing themselves to PR advisors’ offices – due to underestimating the politics of securing planning consents.  More slow walking protests, ownership disputes and forensic criticism of planning materials and decisions lie ahead this year, but the planning regime itself is in surprisingly good shape.

Shale Reforms Keep On Rolling

frackingThe Government’s consultation on planning law changes needed to facilitate onshore shale exploration finished on 14 October 2013.  The 18 December Ministerial Statement confirmed that draft Regulations have been laid before Parliament to address two initial technical challenges arising from the fact that the horizontal drilling used for shale prospecting – ‘laterals’ – extend far beyond the surface operations area.  The Government recognises that the site ‘red edge’ area (within which development will be permitted) must be drawn widely to ensure that it is broad enough to cover laterals. Cuadrilla’s new Balcombe application recognises this, following criticism by Friends of the Earth.

 

Fees cheaper

Planning fees for oil and gas are based on site area.  A 40 hectare exploration consent application could have an above ground site of only 2 hectares.  Fees will be based on the surface operations area only, once draft changes come into effect.

Notices – ‘Not For Shale’

Secondly, notice requirements will be radically reduced from 13 January. Applicants will only need to notify owners affected by the surface operations area. As well as removing some admin hassle for applicants, there is a wider benefit – reducing the number of owners aware of proposed lateral drilling. That is significant because the Supreme Court confirmed in Star Energy v Bocardo that unlicensed deep drilling is trespass.  Greenpeace and some high profile landowners intend to resist shale exploration through denial of access rights – termed the ‘Not for Shale legal block’.  The existing regime for securing such rights through the courts, under Section 7 of the Petroleum Act 1998 and the basis for compensation following Bocardo, mean that the owners’ position is likely to be a speed bump, not a road block. It will be interesting to see how Celtique Energie’s recent exploration application in the South Downs National Park fares amidst all the clamour and change.  An update on the EU’s proposals for EIA reform and the Government’s SEA report for new exploration licences will follow in Part 2.

Muscular Action

The Bank of England is concerned that Britain is building half as many homes a year as Canada, despite having twice the population.  Planners are concerned about unplanned growth.  David Cameron’s support in early 2012 for a new Abercrombie Plan to protect the green belt and meet housing needs led to an RTPI/ Land Securities report.  But a Garden Cities Prospectus promised for high growth areas has not materialised.  Nick Boles’ confirmation in June this year that no resources would be allocated seemed to seal its fate.  But new towns are back on the agenda.  The Labour Party proposes to use five of them to double annual housing delivery until 2022 and the man they have appointed to come up with a blue print for 220,000 homes a year is calling for ‘muscular action’, including the compulsory acquisition of land subject to unimplemented consents.  The Policy Exchange, courtesy of Lord Wolfson, are also keeping the original commitment alive  – offering a £250,000 prize for a workable Garden City model. Now David Cameron’s key planning advisor has jumped ship to oversee it. Here is a short entry for the Prize.

Geographies

Where should new settlements go? In the absence of the RSS ‘Areas of Search’, LEPs should be empowered and incentivised to identify their own Garden Cities and Suburbs, where needs indicate they are required.  Business Rates, CIL and other fiscal tools can be used to make it worthwhile. An assumption that they will be built within range of London or on the line of HS2 needs care – the original Garden Cities were as much about where employment, not just houses, should go. ‘Muscular action’ is certainly needed, if only to make clear choices about the location and scale of major new settlements and their accompanying infrastructure.

Land powers and costs

‘Housing estate’ is a sullied phrase.  If there is going to be social licence to build, genuine placemaking is required.  Excellent masterplanning and design require land budgets and values that allow space for schools, parks and the like as a starting point, not an extra, ‘subject to viability’.  Compulsory purchase will be needed to achieve this, as the draft London Housing Strategy recognises.  The real question is how is it valued and who holds the land once assembled – LEPs, community trusts, Community Interest Companies or an arm of the Treasury?

Prime the pump

CPO valuation will reflect the public cost (or balance sheet risk) of forward funding significant new infrastructure. The TIF approach that has catalysed the Vauxhall Nine Elms Battersea Opportunity Area is a good starting point.  It needs a strategic body – such as the Mayor – to invest in infrastructure before planning payments, CIL and land receipts can catch up.  Labour envisage market borrowing backed by a UK plc guarantee.

City governance

garden city

Letchworth and Welwyn are characterised by communal ownerships and structures, which has allowed investment to be repaid and reused.   Milton Keynes had a different but effective model.  The lessons from these experiences – good and bad – need to be reflected in models of community ownership and reinvestment that provide an asset lock for crucial facilities and a base for social enterprises, releasing local authorities from management and revenue burdens associated with new infrastructure.  The Neighbourhood Share of CIL is a good model for endowing these vehicles.

The Prize winner should address these issues and more, not just design.

Another Repealing Prospect

Having suggested already that section 123 LGA 1972 (best consideration) and section 278 of the Highways Act 1980 (highways contributions) should be repealed, this week we aim higher.  Let’s repeal s106 TCPA 1990 entirely.  Imagine planning without planning agreements.

In CIL world off-site obligations should largely be covered by CIL, and everything else could easily be addressed in conditions.  The nay-sayers will argue that affordable housing has to be dealt with in an agreement.  Why?  Largely because planners try to exercise unnecessary management control over a sector that is already heavily regulated.  Planning should perhaps concentrate on the key issue of ensuring that mixed and balanced development is delivered.  That can easily be done with conditions.  Others will argue that financial contributions need to be covered by agreement.  In law that is not true and, in any event, there should be little future need for contributions.  Abolition of s106 agreements would make the planning process much quicker, and avoid endless wasted hours in negotiations that are largely sterile.  It would probably require a Council to seek comments on draft conditions, with a costs sanction following almost automatically if an unrealistic condition is imposed and needs to be appealed.

In reality, on large projects there would still be a need for infrastructure provision agreements with developers agreeing how CIL should be spent and on what, and settling programmes and specifications for the delivery of schools and community facilities.  Those would, however, become the exception rather than the norm and would not be constrained by idiocies that blight the s106 agreement process like the restrictions on land transfers, and prevention of payments to third parties, that affect planning agreements.

Why not?

Housing our needs

In almost all emerging local plans, there is a perceived problem meeting the need for private rented sector (PRS) housing.  Part of the issue is a lack of imagination about the tools that are available.  Although the following list is by no means complete, it may start a thinking process that, locally tailored, would help to deliver more homes of all types, while maintaining and securing mixed and balanced communities. 

Where there is a PRS need, and it is viable, local planning authorities should consider:

  • critically, as the NPPF suggests, allocating more market housing that can be used to support other housing requirements – never treating “need” figures as maximums;
  • identifying sites that could be used exclusively for PRS;
  • identifying suitable sites where a high proportion of any homes should be for PRS;
  • having a policy that requires all residential developments to have a percentage of PRS;
  • identifying sites that might not, in other circumstances, be developed for residential use (for example in another use or in the countryside) and allowing them to be developed provided that they are preserved for PRS over the long term;
  • since the need for new homes is intrinsically linked to economic development, requiring new employment development to contribute towards the provision of PRS;
  • if appropriate, and where robustly justified, having clear local plan criteria that allows PRS to be provided off site where this significantly increases the scale or quality of PRS being provided in a community;
  • having a local plan policy that, exceptionally, allows financial contributions to be made to a PRS housing fund;
  • using the PRS housing fund imaginatively to, for example, convert existing market homes to PRS use, particularly exploring the opportunities for new homes above and within our high streets and for the conversion of existing homes to create units that meet present PRS needs;
  • where sites have been allocated then using CPO powers to make them available for PRS development, at a compensation value that reflects the new designation.

Clearly the same tool kit could also be used for affordable housing.  Where there are sites with existing consents then perhaps the emergence of a new breed of local plan policies might give an incentive to build out, giving a softer transitional edge to some of the present “use it or lose it” rhetoric.   Given the publication of the Mayor’s Housing Strategy on Monday it is clear that far more needs to be done to help deliver housing.  Being a bit more adventurous with the planning tool kit would be a good start.

Promoting neighbourhood development

The first Neighbourhood Development Order is in progress.  Cockermouth Town Council has submitted an NDO to Allerdale Borough Council for consultation.  NDOs allow a neighbourhood forum to permit a particular type of development without planning permission. 

The proposals put forward in Cockermouth aim to conserve the town’s traditional character and boost the local economy.  The plan focuses on attracting people to the area around the market square by improving its appearance, encouraging bars and cafes and enabling additional housing.  If passed, the proposals will allow the following development without planning permission:

  • change the use of shops and offices to cafes, bars or restaurants and allow pavement tables and chairs within the Cockermouth Market Place;
  • convert the space above commercial premises on Main Street and Station Street into up to four flats;
  • replace shop fronts on Main Street and Station Street in compliance with a design guide; and
  • install sash windows and panelled wooden doors on several streets following a design guide.

Allerdale are consulting on the proposed orders until 23 December.  After the consultation period, the proposals will be considered by an Inspector, and if passed, will be voted on at a local referendum before coming into force.

These proposed permitted developments reflect measures encouraged by the Government to improve footfall in town centre areas.  While the aim of the NDO is good it raises the question of why planning permission should be required for these changes in the first place.

Beyond Penfold: Repeal s278 Highways Act

Almost everyone involved in planning will have a horror story about a difficulty of getting agreement with a highway authority.  Excessive costs, unrealistic bonds, terrible delays, prescriptive requirements, odd programme and access conditions will have confronted and confounded most of us.  So how about abolishing s278 of the Highways Act?

If planning permission for a development including highways works is granted then that should, automatically, allow access to the highway to carry out the works.  This would have to be subject to a national set of standard terms and conditions that would include provisions about notice, works co-ordination and supervision costs.  After all, the statutory undertakers have rights to access the highway and this would simply be an extension of those rights to those with the benefit of planning permission.  Like the utilities, the approach could be subject to a best endeavours obligation to minimise disruption, and potentially to lane rental type payments if the construction period is prolonged.  In complicated cases, a highway authority might want additional control.  They would need to persuade the planning authority that that was necessary.  If successful the requirement could then be included as a condition on the planning permission.

Importantly, as part of the standard conditions debate we could settle, properly, some of the contentious (and time wasting) debates about who bears the cost of future maintenance of street furniture, bonds for the cost of protecting utility equipment and having a clear process of certification for adoption.  We could all better use the time saved to improve the proposed developments.

Repeal of the week

We should repeal all validation requirements other than those relating to a completed standard application form (no local bespoke forms with onerous requirements please), an OS based plan and a fee.  All validation lists should be abolished entirely. 

Too often applications are not validated quickly because of spurious arguments about the need for additional material.  Although applicants can now appeal if they think that LPA requirements are too onerous that causes cost and delay.  Why not simplify matters further so that the responsibility is on the applicant to identify what is needed and to submit it?  In many cases that will be done through pre-application discussions.  In others it will be the exercise of common sense.  If necessary information is identified by the LPA they can ask for it.  They already have legal powers to require further material to be provided.  If the information is not provided then the application should be refused if it genuinely goes to the heart of the ability to grant consent.

Let’s put this in context.  LB Camden are consulting on extending their validation list https://consultations.wearecamden.org/culture-environment/revised-local-area-requirements-for-planning-appli/consult_view .  The revised draft is 28 pages long. Much of it is sensible but should the absence of a crime impact assessment really lead to a refusal to validate all major applications, regardless of the nature of the development?  In some respects the draft list is just wrong-headed.  A CIL assessment form is proposed to be a validation requirement.  Why?  The CIL process is a different regime and there are powers under the CIL regulations in relation to calculation, enforcement and payment.  The planning application process should not be burdened with such an unnecessary requirement.

It would be easier, quicker and more efficient just to rid ourselves of validation requirements entirely returning to the simple position that if an application is submitted it is determined on the basis of the information provided.

BID for success

Business Improvement Districts now number over 150.  They offer a real local voice for businesses.  Some are working towards neighbourhood plans, although hamstrung by the lack of a real voting mechanism to be able to force through proposals.  CLG have published plans to allow property owners to set up BIDs, running in parallel with a BID run by tenants.  Disappointingly this will only be possible for the moment in London since the legislative framework was pushed through as part of the Crossrail funding proposals and requires a business rate supplement to be in place.

Despite some progress in giving BIDs a real role in the planning and economic development world there is one area from which BIDs are being excluded.  Local communities will benefit from between 15% and 25% of Community Infrastructure Levy being paid to them.  There is no provision for any part of this to be paid to BIDs.  In many ways BIDs are more democratic and more accountable than the neighbourhood forums to which the community share of CIL will often be payable.  Where there is a BID why not allow them to take, say, half of the CIL money raised in the area.  That would give local businesses a real incentive to support new development and, probably, a more mature organisation through which to ensure that the infrastructure that CIL promises is actually delivered.

A Repealing Prospect

There are many parts of the planning and related processes that we could do without – we will look at something else each week that could be eliminated.

Let’s start from the ground up.  Development requires land.  The public sector is a significant land owner and there is far more that could be done to release public sector land.  A perceived constraint on the public sector is Section 123 Local Government Act 1972.  This requires local authorities to obtain best consideration for the disposal of property unless they get the approval of the Secretary of State.

The principle is sensible but why does it need to be a legislative requirement?  Even with permitted exceptions and general consents from CLG it is burdensome.  And in some cases local authorities want to use their land more imaginatively than the cash value would suggest is appropriate.  Why not abolish the section and allow local authorities the freedom to dispose on the terms that they think sensible?  In many instances they will want to maximise value (and as tax-payers we should hope that they will).  But they may decide that there are good reasons for being adventurous – and we should also encourage that where the authority is transparent about the reasons for doing so.

Appealing procedures

Just days after the August bank holiday, PINS produced a “Procedural Guide” relating to planning appeals and called-in applications.  The guidance has no statutory status, and replaces PINS 01/2009 and associated Practice Advice Notes. 

The guidance on section 106 obligations is, in particular, worth noting:

  • Final draft section 106 obligations must be sent to PINS no later than 10 working days before the start of a hearing or inquiry.  This requires developers to initiate discussions about obligations, and LPA officers to respond to drafts which are sent in the run up to the hearing or inquiry.  Both might involve a cultural change, perhaps of varying degrees;
  • Inspectors will require “necessary evidence” to assist them in determining whether a proposed section 106 obligation meets the legal tests in Regulation 122 of the CIL Regulations.  This information includes development plan policy; “quantified evidence” of the additional demands placed on infrastructure by the proposed development; details of the extent to which existing facilities are unable to meet those demands; the methodology for calculating contributions, and details of how they will be spent.  This signals that appellants and LPAs must each be more scientific about section 106 obligations.   It will be no longer good enough to offer round numbers for unspecified local amenities, unless both the need and the amount can be justified.  This kind of discipline has been largely absent, but the advice should be seen as enabling and encouraging discussion of what really matters.  (And, of course, if the parties are happy to agree to obligations which do not meet the test, they can be secured by a separate obligation which does not need to form part of the Inspector’s decision.)
  • The document also advises that all parties with an interest in the land must be a party to section 106 obligations.  This is unhelpful, because it is not strictly necessary – the Inspector needs to be satisfied that no-one would be able to implement the planning permission free of the obligations, but this is not the same as requiring every piece of land to be bound.  It would be a particularly problem, if on large regeneration projects where CPOs might be needed, a planning obligation were to be ignored simply because every landowner is not a party to it.