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New planning ‘guidance’

Always remember that this is not new ‘policy’. It is only guidance. It changes nothing.

For applications and appeals the decision making framework remains primarily the NPPF and the adopted/emerging development plan policies. In some ways the Guidance is an unnecessary irritant. Unhappily it will probably lead to arguments that it requires both resolutions to grant and recent inquiry decisions to be reviewed — which will waste time and money for all involved.

Hopefully, DCLG will make it absolutely plain that the NPPG does not create new policy.

Solar Farms – New Guidance

As part of its ongoing struggles to reconcile localism and sustainable energy production, the Government has now published planning guidance to clarify its position. The companion guide to PPS22 has been repealed and replaced with new, short planning guidance that sits alongside the NPPF. In June, a joint DCLG and DECC announcement stated that new planning guidance would be issued to ensure that renewable energy does not “automatically override environmental protections and concerns of local communities”. This was widely interpreted as giving communities a right to veto new sustainable energy development, a fact then denied by housing Minister Mark Prisk.

The Practice Guidance emphasises that the NPPF’s recognition of the need to increase the use and supply of green energy does not override “environmental protections and the planning concerns of local communities”. It is notable that the Practice Guidance does not mention the need for contributions to community led renewable energy initiatives, in particular the need to mitigate any impacts. LPAs are encouraged to prepare specific policies to determine applications for renewable energy development, and if contributions are to be sought they should be sought through these policies.

Heygate Estate Information Commissioner’s report

The Information Commissioner’s report on a complainant’s request for financial information relating to the Elephant and Castle project raises some interesting issues.

One point of principle is that if a Council is asked to rely on a financial justification for waiving a policy requirement then the developer should often expect that material to be public in due course. If the policy is adopted, it is clear, post Cherkeley, that developers cannot challenge its legality/appropriateness.  Depending on the nature of the scheme, the choice is stark – either live with the development plan requirement or be prepared for the public to test the justification for departing from it.  The decision confirms the overriding importance of the public interest test under the Environmental Information Regulations 2004, which – unlike the Freedom of Information regime – stem from the Aarhus Convention on access to justice in environmental decision-making. 

The ICO’s decision is helpful for developers, though, in confirming that Lend Lease’s appraisal information was confidential, how such information needs to be handled and that as a starting point its disclosure would cause commercial prejudice. 

Developers should (and in most cases can) submit appraisal material that causes no real disclosure problem, but need to ensure that it is handled properly and where the scheme involves public land, policy breaches or other controversial elements, be aware of the ultimate risks of disclosure.

Timely decisions on judicial reviews

There has been much debate about the changes to the rules on judicial review of planning decisions, shortening and clarifying the time within which proceedings for judicial review can be brought, and prevent the pursuit of claims that the court assesses as having no merit in being pursued. One key change is that the claim form for planning matters must now be filed no later than six weeks after the grounds for challenging a decision first arose. The removal of promptness as a requirement pre-empts a traditional ground for argument by lawyers acting for authorities on the receiving end of claims.

What is puzzling, however, is that the new rules refer to local planning authority “decisions” as well as the time at which the “grounds to make the claim” first arose. This might have been unintentional, but there must be a fear that it will lead to arguments that the six-week period might start earlier than the date of the decision notice – for example, when a committee decision was made or a committee report published. This is unhelpful, not least because the House of Lords’ decision in R (Burkett) v London Borough of Hammersmith and Fulham (2002) was thought to have made it clear that the date of the decision notice was the event from which time ran.

It will be interesting to see what future decisions emerge on these procedural points. It would be a shame if unhappy drafting introduced new uncertainty.

Solar Farms – Planning Appeal Update

Recent planning appeal decisions highlight the main issues being considered by Inspectors at appeal. These should be taken into account when scouting for sites as well as determining the size, location and height of your proposed ground-based solar farms.  The issues raised in recent decisions highlight the need to undertake consultation with the local planning authority, as well as any neighbouring properties and communities. Many of the schemes did not provide the local community with contributions to supporting locally-based energy reduction schemes, as is seen on a number of locally-made decisions. This does call into question the need and demand from many local planning authorities in connection with proposed solar farms for a contribution. It should not be an automatic offer; if there is a policy basis for providing a contribution, this should be discussed as part of the application determination. In all cases the Inspector recognised the contribution to renewable energy targets.

Getting a fair deal over permissions

Developers and local planning authorities have become more disciplined in ensuring that section 106 obligations comply with regulation 122, since CIL’s introduction. This requires obligations to be necessary and to have a direct relationship to the proposed development, both in terms of the nature of the obligation itself and in terms of it being proportionate to the scale of development.

The appeal decision on Barratt Southern Counties’ Bishopdown Farm scheme in Salisbury raised the issue of whether the regulation 122 test is an irrelevance when proposed community benefits are incorporated as part of an actual planning application.

Barratt’s application for 500 homes included 51 hectares of land to be turned into a country park. Opponents suggested that the country park was simply a sweetener to secure planning permission. The inspector concluded that the park was not necessary to make the housing development acceptable in planning terms. But the secretary of state disagreed, stating that the inspector had been “misguided”. The park was part of the application and the agreement simply provided for its provision and transfer into public ownership, he decided.

A cynic might say that this decision is simply another form of repackaging flexibility in planning obligations conferred by cases such as R v Plymouth City Council ex parte Plymouth and South Devon Co-operative Society [1993] and is simply the planning system finding yet another way to escape the shackles that the CIL regulations and Circular 05/05 impose on development. If the Bishopdown Farm approach is followed, the death of section 106 obligations as we know them may not be imminent after all. But when the issue of “buying” planning permissions is a highly topical issue, particularly in light of proposed amendments to the Localism Bill, who guards the guardians?

Community Infrastructure Levy – the consultation proposals tease but do not satisfy

In the early summer, and for the third year running, planners and lawyers faced a consultation on changes to the Community Infrastructure Levy (CIL). While most of the amendments to the regulations and guidance put forward by DCLG were welcome, they still do not deal with structural imbalances in the mechanism. It still does not have a level playing field at examination. It is still to blunt in practice. It does not deal adequately with large sites. And sensible mechanisms for the actual delivery of infrastructure have yet to emerge.

We have been promised a wholesale review of CIL in 2015. Part of the present problem is that the original design of CIL was imperfect, largely in an attempt to make it easy to adopt and hard to abuse. Unfortunately, the imperfections have made it imbalanced. Over time, that imbalance will reduce confidence in the system and will give more power to those who have objected to CIL, as a matter of principle, from the outset.

Commitment to infrastructure delivery through CIL

The commitment to infrastructure delivery is important. Only if there is a clear infrastructure development plan can a charging authority meet the proposed new duty to “demonstrate” that it has struck an appropriate balance between the desirability of funding infrastructure and the effects on the economic viability of development. If authorities have to demonstrate an appropriate balance, this will empower examiners to interrogate CIL charging proposals rigorously. But in the absence of a clear commitment to deliver infrastructure, that can then be tested, it will be very difficult for objectors to demonstrate a failure to achieve this balance. Examinations will remain one-sided.

Prematurity goes back into the box

Under the plan-led system, it has been rare to see refusals of otherwise acceptable schemes on the grounds that they would prejudge the outcome of the plan-making process. The courts have historically made clear that plan preparation cannot be a rubber-stamp reason for refusal.

The NPPF addresses the weight to be given to emerging plan policies, but says nothing about prematurity. The government’s January 2005 guidance note The Planning System: General Principles, which survived publication of the NPPF last March, advises that refusal on prematurity grounds is “seldom justified” where a local plan is at the consultation stage and has no early prospect of submission for examination, recognising that the resultant delay in determining use of the land would be unacceptable.

Policy on prematurity concerns the crucial balance between planning and delivery. A loose application of prematurity objections flies in the face of the General Principles and the urgency injected by both the NPPF and the Planning for Growth agenda. The 2005 statement still sets the bar high for those seeking to postpone growth until another day.