NPPF Select Committee Report - By Snapdragon Consulting

I am delighted to provide an excellent summary of this week's Select Committee Report on the NPPF prepared by Rebekah Paczek, MD of Snapdragon Consulting, with whom I have had the great privilege to work of late. Nice one Beks.

Quote of the Day:

"The Green Belt is a Labour initiative and we intend to build on it."

John Prescott (when he was Deputy PM)

So, just to add a bit of excitement to the already high tempo world that is planning policy, the Communities and Local Government Select Committee today published the results of their Inquiry into the NPPF.  Never one to change a headline simply because it doesn't actually fit the story, the early copies of the Daily Telegraph declared 'MPs call for planning reforms to be scrapped'… Having hurriedly reread the document to make sure I wasn’t reading the Hollywood-ending style NPPF investigation, I can confirm that the Telegraph is indeed being a little cavalier with the interpretation of the report, as it was with the embargo which it merrily broke at about 9pm…

The report opens with a statement that most witnesses seemed contact with the concept and approach of the NPPF, most agreed that reforms were needed and there was no need to rewrite the NPPF as a whole (thought that was worth putting in as, although it isn't as headline grabbing as the  'MPs demand a full rewrite of this hideous document and, whilst you're at it, can you also sort out Europe and make sure that I can still afford to go to my second home in the Cotswolds which really shouldn't have any new development around' kind of headline is, it is more accurate…)

The Committee Report does strongly recommend some changes, most of which were anticipated but some others less so.

So, what are the headlines from the Committee Report?

• The over-riding concern of the Committee is that it is too weighted towards economic growth and places other considerations too far down the list.  The brevity of the report is highlighted as not having brought greater clarity but instead caused confusion, which it says can be addressed without turning the NPPF into an excessively long document.
• Potential for an increased risk of expanded Local Plans being developed as a means of plugging the gap left by a concise NPPF
• Potential for planning to be slowed down rather than sped up and a culture of 'planning by appeal'
• A recommendation that the default 'yes' should be removed to prevent decisions on sustainability being undermined.
• A recommendation that the five principles of sustainable development from the 2005 strategy should be reinstated – the Committee emphasises the need to seek to achieve all aspects of sustainable development, not simply trade one for the other (I suspect that can be interpreted as 'just because it delivers economic growth doesn't mean it's acceptable if it isn't sustainable on any other level)  Linked to this, the Committee are keen to see better protection for environmental sustainability, including the reinsertion of brownfield first and the ability for local authorities to prioritise brownfield land more firmly when identifying land supplies.
• The Committee also recommends that the NPPF should 'unambiguously reflect the statutory supremacy of the Local Plan' with the presumption in favour of sustainable development only relevant if consistent with the Local Plan. (Obviously, this is dependent on local authorities actually having a Local Plan which is up to date, relevant etc).
• As expected, there is a recommendation to re-include the Town Centre First principle, with a provision to allow communities 'in exceptional circumstances' to adopt an absolute protection of a town centre from out-of-town development. (Not quite sure what determines 'exceptional circumstances' and how this absolute protection would be implemented, but it's interesting anyway…)
• The Committee expresses concern over a potential lack of consistency regarding the Duty to Co-operate and the evidence bases which are used for Local Plans.  Linked to this, the Committee questions just how adequate existing resources are to cope with this.
• Finally, the Report recommends a further, short, consultation on the technical aspects of the NPPF.

In summary, whilst there are recommendations for change and certainly recommendations for work to be done in terms of definitions of sustainable development, clarification and rebalancing the importance of economic growth against other considerations, the Committee is not seeking a fundamental rewrite.  Much of what is in the report has been discussed at length both through official channels within Government and informally across the industry – from all sides – for the months since the NPPF was first published.  Irrespective of your view on the NPPF and planning policy in general, the NPPF has certainly been subject to extensive consultation and debate.  

Regardless of any level of excitement over precisely what the Select Committee put forward, the more important thing is what the Government subsequently do with it.  Governments over the years have been adept at proving the theory of black holes, whereby something of substance enters into and then, through some distortion of the time/space continuum (consultation, elections, economic circumstances, pique…) is never seen again in any recognisable form.  

In this case, the Government have already made some noises regarding the reinstatement of Town Centre First, Brownfield First and also clarification on the Definition of Sustainable Development.  However, so far, Government has been resistant to undertaking further consultation on the basis that people have already made their views clear and it is unlikely to achieve anything.  Furthermore, given that the Localism Bill is already an Act, Government will be keen to get the NPPF ratified so that the two documents can work in tandem (??!) which is, allegedly, the intention.

And finally, a quote to finish it off:

"Early in life, I had noticed, that no event is ever correctly reported in a newspaper"

George Orwell

Have a fabulous Christmas and a Happy New Year.  Snapdragon will be back in 2012 in new offices and with more staff, we look forward to more excitement in the world of planning and politics…

Many thanks Beks and very best wishes for Christmas and the New Year to you all.

Where's Eric? - A Christmas Game For All The Planning Family

Is it just me, or has our illustrious leader been somewhat reticent of late to bring yet another exciting change to the planning system for our rapt attention. 

Certainly Grant Shapps has been out on the stump as usual giving vent to all kinds of new ideas; including the all singing, all dancing, answer to everything, the National Planning Policy Framework (NPPF) due to grace my mid-life crisis by Easter. Even the Chancellor of the Exchequer has recently expounded on planning delays and the appeal system. But where is Captain Pickles?

Since the Government reshuffle in the early autumn - when Eric didn't get Minister for Catapults & Knocking on Doors & Running Away (about the sum total of Britain's defence establishment by the look of it) - he has been remarkably absent from public view and (worryingly) very, very silent. 

Could he be plotting a new planning coup - something so fiendishly cunning that even the most cunning of cunning foxes would blanche embarrassed and wonder what the devil he'd been doing with his life? 

Is he hiding behind the Localism Act? 

Or maybe he is simply distracted by ideas of how to repatriate all Eurozone-huggers back to France "to see how they like it for once".

So I wondered if you can help find him. Let me know if you see him. And there's a Wally in there too!!

And a Merry Christmas to you All.

The Hare & The Tortoise Approach to the Planning System

In his Autumn statement last week Chancellor George Osborne announced a fresh set of measures intended to tackle the planning system's "lengthy delays and high costs", including a review of planning appeals procedures. But will this mean more haste and less speed in reality?

If there was ever a time the Government needed to back off and let us all get our heads around the current tide of planning changes it is now. But no. Just when you thought it was safe to update the Planning Encyclopaedia, good old George lobs in another procedural hand grenade and has us all ducking for cover again. And what the devil does it have to do with the Chancellor anyway? Are the whole cabinet closet planners?

Well Mr Osborne, if you really wanted to avoid lengthy delays and high costs here are three simple measures:

1. Do away with the often nonsensical and 'bottom protecting' validation procedures that have provided every 'jobs-worth' administrator with such unmitigated enjoyment over the last few years. Let some real planning common sense prevail for goodness sake.
2. Stop the consultation rot now. If there was ever a vehicle for delay and for costs stretching into infinity it will be letting 'locals' have free reign over planning applications. Prevarication and filibuster based on limited or no real understanding of the planning and development system is a recipe for disaster.
3. Go mad. Re-invest in planning departments. They have been decimated by local Government cost saving exercises and a lot of very competent and experienced planners are now 'available for alternative employment'. You want speed of decision-making? Keep the time-served guys around who know what the hell they're doing and can also bring along the next generation. And let's not forget all those nice guys at PINS.

Having made more than a few appeals in my time I cannot really see what is wrong with the present appeal system. There is a well understood structure and definite timescales, which you depart from at your peril. The short householder procedure was a sensible addition and with so many appeals now being dealt with by way of Written Representations rather than in Public Inquiries, the days of wearing out suit trousers on hard chairs in cold church halls are pretty much long gone.

There is also some suggestion that appeal decisions need to be more consistent. Apart from the general and longstanding planning premise of 'each case on its individual merits', you might just check the old home front first George. Looking at the way in which Captain Pickles has driven a flotilla through the appeal decision process in the last few months and evidently  suffers from increasing prematurity - something profoundly destined to cause delays and costs beyond all reason - I would respectfully recommend the phrase, 'physician heal thyself'. 

So where is the problem? Heaven forfend this is just another in a continuing series of sops to the general electorate or worse, a poorly contrived balancing act to keep the development sector engaged.

There’s Nowhere to Hide under Localism – The New Enforcement Rules

Have you ever wondered why, when out for a quite Sunday walk in the countryside, you can sometimes hear the faint strains of the Eastenders omnibus and childish giggling coming from the direction of a large hay rick.

A brief review of any tabloid newspaper will quickly reveal that hidden deep in the straw bales will be a mansion, castle or other habitable dwelling, cunningly concealed from the wary eyes of the planning department. In truth, very few people have ever prospered from such drastic attempts to circumvent the planning system, but it has caught the imagination of the vociferous, morally righteous, rate-paying, god fearing public and the self-appointed protectors of the landscape, to an extent that this Government has decided to do something radical about it.

Few people know (or choose to recognise) that it is not actually a criminal offense to carry out development without planning permission, but it is if you then fail to comply with an enforcement notice. Equally, there is no obligation for authorities to use their extensive enforcement powers. However, the ‘public’ generally want blood to be spilt for such flagrant breaches of the rules and cannot believe that authorities would ever NOT enforce, whatever the circumstances.

Yes. There are people who deliberately and wantonly abuse the system. Tell me something new. As a planning consultant I am regularly invited to ‘ignore this’ or ‘overlook that’ in providing guidance and advice, and such inquiries get short shrift.  But, like any walk of life, if you always abide by all the rules, all the time, there is very little that would actually get done. Flexibility is the key.

Not every departure from the straight and narrow is so demonstrably awful that the ‘breacher’ should be strung up from the nearest tree. Sometimes it’s a simple mistake or oversight (yeh right!), or a pragmatic alteration to a scheme in order to overcome a problem that could otherwise cause a costly delay. That’s why the retrospective application has been a means of ‘legalizing’ the situation for decades and even an appeal against an enforcement notice allows for permission to be granted under Ground ‘a’.

But things are about to change. The Localism Act 2011 (enacted late last month) now adds additional measures to the panoply of enforcement powers, founded on the general premise that:

“The Localism Act will strengthen planning authorities’ powers to tackle abuses of the planning system, such as deliberately concealing new developments”.

But it goes far, far deeper than that. Oh yes.

Planning authorities now have the power to decline to determine retrospective applications after an enforcement notice has been issued; and

There will be limits to the right of appeal against an enforcement notice after a retrospective planning application has been submitted, but before the time for making a decision has expired. So, if an authority decides to issue an enforcement notice during the consideration of a retrospective planning application, things could get a bit tasty.

A planning authority can apply to a magistrate’s court for a Planning Enforcement Order, within six months of discovery of an apparent breach of planning control. The order would allow the authority a year in which to take enforcement action irrespective of the usual time limits in the Act (the four year and ten year rules). The effect of the Order will essentially remove any immunity from Enforcement action. The Magistrates Court may only make a Planning Enforcement Order though if they are satisfied, on the balance of probabilities, that the breach has been ‘deliberately concealed’ (a situation yet to be defined – but I expect its one of those situations where, ‘you know it when you see it’).

The key issue to bear in mind here is that because the Act does not provide a time limit for seeking a Planning Enforcement Order, it could be backdated to breaches going back over many years. Whether this is likely to happen in practice is debatable, but the option appears to be there if needs be.

And here’s the real rub. A Planning Enforcement Order might be triggered by an application for a Certificate of Lawful Use that has been submitted to regularise a breach of planning control. The planning authority may have been unaware up to that point, but if the planning authority consider there has been “deliberate concealment” by the applicant, then the PEO procedure looks high on their list of actions to take. As I say, there’s nowhere to hide.

And, just in case you thought this is all academic as you’d, ‘never do anything like that’ yourself, do you know if there is a latent problem with the property you’ve just purchased? Is than shiny new extension actually lawful? The liability runs with you, the landowner.  Best to check – or perhaps not? If you know about a problem then arguably not resolving it amounts to a deliberate act of concealment.

The provisions in the Act are likely to be introduced fairly quickly. The suggestion is by 1^st April 2012. Just enough time for the local lynch mobs to hold a committee meeting and get planning permission for some new parish stocks, or a change of use for the maypole as a gallows.

And, if you’re sat in your pseudo-medieval, 15 bedroom’ed, bijou, ‘Southforks’, mansion in the midst of a bunch of straw bales, somewhere in rural England or Wales be afraid. Be very afraid!

Consultative Planning or Planning for Conflict?

You would have thought that after 30 years as a planning consultant I really should be inured by now to the vagaries of public opinion. Sadly not. After another two days of mind numbing public consultation I am yet again sure that Localism is going to be a monumental failure. 

Well, that's a bit strong Ian I hear you retort, surely a move toward local democracy will be beneficial and lead to better planning for all?

No. Not now. Not ever. Never. The public don't want to plan positively for their area they want to stop anything and everything that could even remotely impact on their lives whether this is contrary to good planning or good sense.

In his book 'God Collar' Marcus Brigstock discusses the issue of humanity and remarks.. "I don't mean to be too disparaging but... be honest, have you seen humanity? Have you met many of them? Have a look now, peer out the window...did you do it? Ghastly aren't they?"

In the normal course of daily events I'm sure that the majority of humanity is perfectly pleasant and amiable. Willing to make a cheery greeting, hold a door open, even offer a seat on the bus to a lady or two. But make a planning application within 200 miles of them or theirs and Mr Jekyll turns rapidly into Mr Hyde.

We leafleted, posted expensive notices in the local paper and staged a public exhibition. The first person through the door (20 minutes ahead of time) complained instantly that they didn't know anything about the consultation and said it should be re-notified to all residents (about 50,000) and a public meeting held instead. Lets ignore the fact he/she managed to find the venue, at or about the right time and had a consultation leaflet in his/her hand and evidently knew all about the proposal, the real issue is that he/she was brooking no argument. Preconceived opinions were set to stun and "lets find any reason at all to phillibuster the scheme because, 'I don't like it'". And so it began. 

Over 17 hours I listened pretty consistently to opinions about my client (mostly slanderous and potentially actionable), about the Councillors (definitely assuming all were corrupt), about the client and the Council (absolutely unrepeatable) about the scheme (not needed, not wanted, not appropriate, not everything) and about me (again slanderous) to my face. And all that time I had to be polite and suck it up in the interests of not prejudicing my client and maintaining a professional stance. 

Well bully for you Butter.

The thing is, this is going to become the norm. I have been there before of course, but if I heard it once I heard it a thousand times, 'we will be making the decisions now, it's localism' - I paraphrase (and made it polite too).

Fine. Lets hear some common-sense justifications for your position on planning merit then. 

Nope. We just don't want it. 

But it is allocated in the adopted Local Plan for the proposed development. 

Don't care, don't want it. 

And so it went on, and on, and on.......

A particularly vicious addition to the vituperative backwash of public consultation opinion was the 'we don't want any of that affordable housing here', with wholly inappropriate references to anybody from more that 5 miles away and directly related to local crime rates that were evidently solely the province of such housing. Last December at a similar exercise the bigotry and bile vented on hapless 'outcomers' was almost too much to stand. I had to walk away from one such onslaught from a primary school teacher for goodness sake. What the hell is he/she teaching our kids? I've noticed that this sort of thing is edging into public expressions of views in planning committee meetings too. 

I'm sure that there are sound and reasonable people out there who could be engaged enough to listen, consider a proposition and come to a reasoned decision one way or the other. No one minds a professional exchange of views, but in the general mass of humanity these people are few and far between as far as I'm concerned and tend not to engage in consultation processes for the very same reasons. They don't want to take the flack either. Planning Officers and committee members are going to have to be increasingly resilient and I feel for them.

Localism has its good points. The aims are admirable. It's just that it relies upon local people adopting a pragmatic and balanced stance in approaching development issues. Sadly I doubt this situation will be universal. 

So, if otherwise acceptable development is allowed on sound planning grounds, local opposition will feel cheated and impotent and potentially ignored. If it's refused then planning by appeal will return to being the norm -  and so the lifecycle of planning turns once again. I've been there before. And planning will take longer, cost more and be just as challenging.

Plus ca change. Plus c'est la meme chose.

Right. I'm off for a lay down with an ice block on my head, ready to do it all over again tomorrow.

HAS PICKLES LOST THE PLOT?

Having warned planning QC’s earlier in the year to expect their P45’s, Eric Pickles MP has now had another go at ‘Maserati driving planning lawyers’ as the fountainhead of all that is failing in the town planning system. Is it me, or has Eric finally and irrevocably lost it?

As I sit here at 35,000ft in the chambers Lear Jet, en-route chez Butter in the hills just overlooking Cannes, I muse once again on the irrationality of the arguments being put forward to justify the wholesale change in the planning system that are currently before us.

Planning is too complex and too time consuming and its all the fault of those pesky planning lawyers and consultants who are hell bent on obfuscating perfectly reasonable desecration of the countryside and (to misquote Harry Enfields’ character) ‘loads of housing’. This seems to be the tone – [yes, another Merlot would be lovely, thanks] – and is evidently a rather limp tactic to draw fire away from the real culprits, the Whitehall Mandarins and his fellow parliamentarians. God forbid he upset the ‘Yes Minister’ possé. They’d string him up in a gimp suit somewhere in a National Park with a sign round his neck saying do not feed the MP (anymore). So, someone else is to blame. Those miserable planning lawyers with their flash suits, their flash cars, and unfeasibly large expense accounts – that’s who.

But who does Pickles thinks writes the legislation in the first place? The Government of course. All the paraphernalia of law surrounding it has grown up simply because successive Governments have added and tweaked and played with the system to an extent that you need a PHD in logistics just to wade through the contents page of the principle Act.

When I first started work the Town & Country Planning Act 1971 was the size of a medium sized novelette and could be read cover to cover over a long lunch at The Ivy. Now it takes on the appearance of a gluttonous British Library with a cream cake habit. And I guarantee the only planning lawyers who have caused that to happen are those employed by the Government to make it so.

Put (very) simply, there are two sorts of planning lawyer; those who support the developer and those who support the local authority. They are generally hermaphrodite in their fee earning stance. The former seek to achieve planning permission and the latter defend the position of the Council (representing the public at large) who for whatever reason have declined to approve permission. That’s called democracy as far as I know, but hey, who’s arguing. [This pate de foie gras is most toothsome. Yes, a top up would be lovely]

Town Planning law has always been the province of interpretation. If the legislation simply said, “all the brown bits on the local plan will get planning permission come what may” then life would be potentially simpler. Except you’d have to have had some sort of debate about defining the brown bits in the first place. Hey Ho.

So, will the new sunny uplands of the Localism Act and National Planning Policy Framework be any different. Well, no actually. The Government has failed to provide any meaningful interpretation of even the most basic issues. And if there were ever a phrase designed to whet the appetite of the most lackluster of planning advocates it is ‘what constitutes sustainable development’.

So don’t go round blaming the planning law fraternity for failings in the system you invented Mr Government. If you want to create a Janet and John Book 1 planning system go right ahead. Quite frankly I’m not bothered either way. Whatever the final outcome, there are obvious certainties in life; death and taxes are but two. A third is almost certainly the need to arbitrate and advocate between opposing poles in the planning world.

Now, must sign off, as the seatbelt light has just come on and I need to make a quick dash from the Executive Terminal in the Maserati to collect the family before the beach barbeque in Nice. Or should I use the Lexus, maybe the Lambo’, perhaps the Ferrari this time …. It’s a tough life.

The Dummies Guide to the NPPF

Why was I surprised? Let's face it, nobody has actually read the NPPF in detail (or at all) have they? They've simply assumed what the draft guidance says and gone screeching around the media - and anyone else who will listen - claiming all kinds of ridiculous mayhem and the end of human existence as we know it.

I was warned by my wife early on in our marriage not to mention what I do for a living at partys (or in fact anywhere) for fear of never being invited back. The mere mention of Town Planning as a profession caused eyes to glaze over at 500 metres and total paralysis within hand shaking distance. Most people think I work for MI5, but that's another story.

So why is it then that apparently mature, sensible, thoughtful and educated human beings a) get so worked up when anything approaching development involving damaging a blade of grass is proposed and b) claim armageddon on any occasion when a Government tries to sort out a new way of doing things  - which in this round of changes actually tries to put decisions into the hands of those very same people.

It appears therefore that 'plotting against planning' is now the sole topic of (im)polite conversation over the samosas' and Chardonnay. How glad am I then that I haven't been 'outed' as a professional advisor, yet. I'd never get near the bar.

I cannot escape at work so easily. I had a phone call enquiry only the other day prefaced by the words, "I hope you wont think I'm a nimby but....." which (guess what) then degenerated into a nimbyesque rant about next doors porch extension being out of character with the upmarket nature of the cul-de-sac and could I suggest ways to have it removed - or some such?

I wont regail you with the unspoken response that was on the tip of my tongue, but needless to say I rapidly came to the conclusion that I really needed to get a life!

Of course. I blame the Government. All that education, access to information  and increasing moves toward giving power to the people is creating a banana* public.

*Build Absolutely Nothing Anywhere Near Anyone.As a result of this veritable hysteria the Government have now issued a short question and answer Myth Buster document that endeavours to try and lay to rest some of the more extreme interpretations of the main NPPF document. (see link below)

They might as well have circulated an email to all concerned with the inimitable words of the TV Ad, "Calm down dear, its only a draft".

The Government are simply re-stating many of the principles that have been the bedrock of Town Planning since it came into being in 1947. And making sure in the process that local people have the final say. There's a great deal wrong with that approach of course; if you fail to account for the vociferous minority who will inevitably dominate proceedings at Neighbourhood Plan meetings and the like. Inertia will rule supreme.

But before you all put fingers to keyboard in response to what you may think my position is, I could not and do not advocate unrestricted development. I was however a child of planning when the developer still had a specific right to a permission - in the absence of sound reasons why not - and it seemed to work OK - well, at least as well as at any other time, and that was well before all the development plans, national and local validation criteria and the plethora of other time consuming, expensive and often pointless requirements that accompany today's planning processes.

I advocate a return to some semblance of common sense before we all take things too far or, as my mum used to caution, there will be tears before bedtime.

We have in this country a rapidly increasing population that need housing, feeding, watering and something purposeful to do. It's no good the retiring baby-boomers sticking their elbows out and repelling all boarders any more than D Vellop & B Dambed PLC assuming they have carte blanche to chuck up a load of old tat anywhere that takes there fancy. Neither cause will be satisfied by making unreasonable assumptions about what they think is being said over what is actually proposed. A balanced and reasoned response to the draft consultation is more likely to find support than the unmitigated tosh that seems to be circulating at the present time - or am I being naive (again!).

If I know one thing, history tells us that whatever finally emerges as the new sunny uplands of modern town planning in the UK it will probably be changed again: just at the point where everyone has got their heads around it.

Plus ca change (plus c'est la meme chose).

The Myth Buster can be found here:
http://www.communities.gov.uk/publications/planningandbuilding/nppfmythbuster

Will CIL be the Pride of the Coalition or Prejudicial to Development?

It is a truth universally acknowledged, that a Council in possession of a fortune from CIL will be in want of an excuse to spend it on things other than Infrastructure (with apologies to Jane Austen)

A subtle little amendment has been proposed in the Localism Bill by two Lib Dem peers that could fundamentally alter the original premise for Community Infrastructure Levy, which became active last year.

The purpose of the Community Infrastructure Levy is to "ensure that the costs incurred in providing infrastructure to support the development of an area can be funded (wholly or partly) by owners or developers of land".

OK. It will provide a more certain (allegedly) position for developers and locals alike who can see the direct benefits of development (apart from the jobs created, circulation of economic benefit, a roof over ones head etc) translated into local infrastructure delivery and/or improvement. So far so good perhaps.

But an amendment tabled by the peers introduces a whole new way of reading the legislation. They suggest that CIL is contributed so that:

"owners and developers of land make a financial contribution to support communities in the area in which their development is situated, including the provision of infrastructure and the building, improvement and renovation of housing".

So not just Infrastructure then, but the plethora of all and any initiatives that may be on a local wish list, including building and renovation of housing. Pre-supposing of course that the development concerned is not for housebuilding in the first place presumably.

Liz Peace, chief executive of property industry lobby group the British Property Federation, said:  "If CIL is diverted to non-infrastructure items, that will undermine the ability of authorities to deliver and will hold back development and economic growth."

That has to be the understatement of the year. We all know what is going to happen don’t we. Yes we do. Profligate Council members will simply view CIL as a ‘get out of jail free’ card for their poorly contrived localist game of Monopoly so that any half baked initiative will be fair game for CIL funding irrespective of the need for or benefit to the area, so long as a vote might be in it. Too cynical? I think not. 

And who really thinks that ‘development’ revenues derived from CIL could really be the sole and only means of achieving all infrastructure requirements and everything else into the bargain. 

Come on guys, get real. If you want to develop your way out of the recession, make sure that development actually happens in the first place and don’t treat CIL as a panacea for resolving all political, economic, social and community ills. 

Is Your Planning Permission in Good Condition?

Part of an occasional series of planning hints, tips and advice notes by Ian Butter FRICS MRTPI

There you are, still nursing a mild hangover from the post ‘planning committee success’ party and lo and behold the decision notice lands on the mat a few days later. Here are a few things you should do to make sure that what has been granted actually suits your requirements – what you should NOT do is file the decision and phone the builders.

The wealth of pencil lead expended on the subject of planning conditions in the courts and elsewhere would make even Samuel Pepys blanche so I will refrain from a detailed overview, but here are a few key thoughts and suggestions to get you through the next stage in your progress toward that much sought-after scheme.

There are few planning decision notices today that are not issued with an array of accompanying planning conditions. There are some standard ones (like the time limit) that always appear and then a series of others that are often drawn from a standard list, or are bespoke to your particular scheme. These conditions can run on to several pages and will include a justification of why the condition has been applied and there may also be some accompanying ‘Informatives’. I will come back to these later.

Planning Conditions are just that. They define and control the scope of the development that has been permitted and the manner in which it is to be undertaken. On simple applications there may be very few (occasionally none at all), although the ubiquitous landscaping conditions seem to creep into even the most modest of development proposals these days.

In order to properly implement your planning permission - so that it is lawful - you must satisfy the requirements of the conditions. Failure to do so could invalidate your consent and may lead to enforcement issues in the future. I had a call only last week from a householder who had just bought a newly built house but been served with an enforcement notice with respect to conditions that the predecessor owner/builder had failed to comply with. And the builder had emigrated to Australia! Don’t forget,  caveat emptor (the buyer beware) applies: the planning permission runs with the land not the individual.

Job 1: READ THE DECISION THOROUGHLY

This is vital. You need to make sure that there are no nasty surprises. Is the description correct? Does it match the title of your application properly? The planning authority may have re-written it slightly (which is not a problem) but you need to ensure it is for the development you actually applied for in the first place. I know what you’re thinking, but you’d be surprised.

Job 2: SORT THE CONDITIONS

There are generally three types of condition. Those that are simply there to provide information, or set out the terms of the permission, generally require no direct action. However there are others that require certain activities to be undertaken or prior approval secured and these fall into two types; condition that requires works or actions to be undertaken as part of the scheme and Conditions Precedent. Now, it is generally the latter that give people the most trouble – not least because they can be tricky little devils to identify correctly – but essentially any condition that starts with words like, “Before any development commences….” should be regarded as VERY IMPORTANT. The clue is in the word ANY. If you start work on the development before such conditions are properly fulfilled your permission may have just been instantly invalidated. Do not pass Go, do not collect £200.

Job 3: MAKE A SINGLE CONDITIONS APPLICATION (IF YOU CAN)

As is the way in town planning nowadays there is a charge for having conditions signed off. However the Regulations are clear that the charge is per submission not per condition, so if you make one submission for all the conditions it is just one fee – simples!

Job 4: IMPLEMENT THE PERMISSION

Once you have all the conditions signed off by the local authority you can implement your permission by commencing the development. And it is well worth doing so too, as permissions are hard enough and expensive enough to obtain in the first place and all that effort and money shouldn’t go to waste because the permission runs out of time before you get cracking.

A note of caution though. I am assuming you have also obtained any other approvals necessary, such as Building Regulation approval; Section 278 Approval under the Highways Act for works in the public highway; discharge licences; public health and other operating licences etc etc.

MODIFICATIONS

No sooner have you secured your consent but you come up with a cunning plan to modify part of the scheme. What can you do? Some changes are considered so minor that they can be approved by the local authority as a minor modification without needing to adjust the consent and an exchange of letters will suffice. Others may require a minor modifications application or a wholesale planning application for a variation of the relevant condition. The motto of this story is to try and get it right in the first place. You will remain friends with your Architect as well.

APPEALS

What happens if your decision notice contains a raft of unsavory and unworkable conditions (well one at least) that make the permission all but worthless – I exaggerate perhaps, but here again, you’d be surprised.

Think very carefully before you go rushing off to Appeal. If you appeal the decision on the grounds of an unacceptable condition you may be OK, but equally the Inspectorate could reconsider the whole permission. It wouldn’t be the first time an appellant has walked away with a dismissal for the whole scheme, which is then very hard to overcome.

Perhaps the condition is fundamental to the consent and without it the local authority would not have approved permission, but you feel it can be changed or removed. My advice is to submit an application for a variation of the offending condition and then appeal THAT decision if it is subsequently refused. In that way you at least protect the original decision.

ENFORCEMENT

If for some unfathomable reason you decide not to comply with a planning condition you could be served with a breach of condition notice to put the matter right. Just to make your day, there is no right of appeal against such a notice. Go directly to Jail, do not pass Go etc…

If you have carried out building works without consent you might be OK if they have been completed for more than 4 years and you can prove it. A breach of condition though must survive a long and testing 10 years before any sort of defense against the dark arts of enforcement can be brought to bear. My advice? Don’t tempt fate.

INFORMATIVES

Cunningly hanging around at the very end of the conditions (like the neigbours’ barky dog) there may be another round of what appear to be conditions, but under a separate Informatives heading (no one said that development was going to be easy). You will also need to consider the requirements set out in this section. Often they relate to other matters that are not the province of the planning department but are fundamental to the development nonetheless. Please don’t overlook them. They have a way of biting back when you least expect them too.

AND FINALLY

With the development market being so uncertain at the moment it is tempting to obtain permission and then sit on it (not literally you understand) until the market improves. Do keep a weather eye on the expiry date. Like fresh produce, planning permissions can go off (so to speak) and you could find yourself right back to square one if the permission is allowed to lapse by effluxion of time.

Most full permissions generally have a deadline date for implementation of three years (it used to be five) or three years from the date of an outline approval to submit for any detailed permission and then two years for development to commence after that.

If you are running out of time you can now apply for an extension of time. This provision was removed for some time by the previous Government who wanted to force developers to get on with things, but reinstated when a lot of us planners had a go at the Secretary of State for failing to recognise there was a national recession out there.

I hope this thumbnail overview of the word on planning conditions is of help. If you require any further detail then there is a planning document library available at www.ruralurbanplanning.co.uk or do please email me on ianbutter@ruralurbanplanning.co.uk

Neighbourhood Planning - "You've Got To Be In It To Win It"

Neighbourhood planning is a key plank of the Government’s localism agenda. Local groups can draw up plans, subject them to a referendum, and thereby determine the kind of development they want to prioritise in their local area.

The Department for Communities and Local Government (DCLG) has made a fresh call for local planning authorities to bid for grants of up to £20,000 under the neighbourhood planning scheme, which is intended to act as a test bed for the coalition’s planning reforms. The call for applications follows amendments to the Localism Bill that are intended to open up the neighbourhood planning process to businesses.

The Government would like to see a greater role for business in neighbourhood plans; to the extent that a financial contribution toward the Plan making process itself ‘would be very nice thank you’. Because only local planning authorities are eligible for the grants under the scheme, Government is asking businesses taking part in the next wave of its neighbourhood planning 'vanguard' scheme to contribute towards the cost of the running the pilots.

Call me an old cynic if you will but what business worth its’ salt is going to chip in to a plan that could – on a democratic referendum basis – bring about its downfall through stricter planning arrangements. (sounds of turkeys singing ‘White Christmas’ off stage left).

Clearly we have the potential for (alleged - ahem) World Cup style finessing to achieve meaningful ends. Is this really what planning has come to?

Some would say planning has always been subject to persuasion by pecuniary ‘interests’ but in my view the ‘brown envelopes over the Chief Execs desk’ has only ever been a myth. Or, at worst, a lone occasion, blown up into an international incident.

Decentralisation minister Greg Clark has indicated that eight "business neighbourhood frontrunners" would develop business-led neighbourhood plans for local business areas and town centres. (see, I told you this was the Royston Vasey approach to planning)

The eight frontrunners are:

- Aldershot Town Centre

- Bankside, London

- Central Milton Keynes

- Liverpool Innovation Park

- Team Valley Trading Estate, Gateshead

- Trafford Park, Manchester

- South Bank, London

- West End, London

Liz Peace, chief executive of the lobby group British Property Federation, said the initiative heralded a "new approach to local planning". (You bet).

"The business neighbourhood frontrunners unveiled today are all areas with an enormous potential for economic growth. Designation as a business neighbourhood should help them to put together a planning and development framework for their areas that allows them to realise that potential."

It would appear that such neighbourhood plans can be set up deliberately for "promoting the carrying on of trades, professions or other businesses in such an area".

Not a bad idea but whereas, in other areas, the residents may have to recognise that businesses do actually exist and development may have to happen, the business neighbourhoods must equally recognise that there may be other interests that need to be taken into account. Who is going to balance all these competing objectives?

Clark said: "We need to involve local companies more explicitly in neighbourhood planning decisions for business areas if communities are to get the most out of them.

"Businesses have access to skills, resources and expertise that can give a real boost to getting the right kind of growth underway in many areas. Business neighbourhood frontrunners are about residents and businesses shaping their neighbourhood together."

Well I thought that was what Planning Policy Statement 4 was all about. Economic Development. Don’t get me wrong, I’m all for supporting business development – it’s been my stock in trade for 30 plus years - and getting involved in the plan making process is vitally important too. But to create a financial link (supposedly out of goodwill and neighbourliness) is perhaps going a step too far toward cash for permissions. Or is this just another part of the recent suggestion of financial considerations in planning?  

The closing date for the receipt of applications is Friday 8 July. And remember “You’ve got to be in it to win it”.

Coalition set to relax rules on barn conversions

From +Planning  Monday, 23 May 2011

"Rural landowners have welcomed government moves to ease planning restrictions preventing disused farm buildings from being converted into affordable housing.

The relaxation is signalled in this month's government response to the Commons environment, food and rural affairs committee's February report on farming in the uplands.

The response invites authorities facing rural housing shortages "to consider amending their local planning policies to support the change of use of farm buildings to affordable homes where these are considered inappropriate for employment use, or take the need for affordable homes into account in assessing individual applications".

William Worsley, president of landowners' lobby group the Country Land and Business Association, welcomed the move. However, he added: "It is a great pity the Government does not yet recognise the need for new-build housing on upland farms." This is often a cheaper option than converting disused barns, he said.

But Ian Woodhurst, senior farming campaigner at the Campaign to Protect Rural England, said: "Any conversion should be done sensitively. We don't want to see suburban designs in the middle of upland landscapes."

In their response, ministers also promise a rural policy statement before the Parliamentary summer recess".

Comment: There is an important word in the midst of all this that bears consideration and that is 'affordable'. 

Just how will a single barn conversion be of interest to a Housing Association or local Housing Trust who are tasked with delivering 'affordable housing'? I doubt any current affordable housing providers property criteria could be achieved and management of a remote single unit is just not practicable. I rather think the Government have a broader agenda or, alternatively are yet again playing to the crowd.  Perhaps we are seeing a change in interpretation of that particular planning word than has been the case in the last decade or so.

Perhaps the Rural Policy Statement will shed some further light. 

Community Infrastructure Levy - An Update

Just how excited can one human being get about such an arguably dry topic as the "Community Infrastructure Levy". If I had a life, probably not very, but as a planning consultant this legislation will rule my world (not rock my world sadly) for some time to come.

Why I hear you ask. What could possibly be so fascinating?

Well, put simply, CIL is designed to extract cash from developments in order to pay for the infrastructure to support it. A pre-determined charging schedule will be applied to most development projects at the planning application stage so that everyone knows what is expected of the scheme, especially the developer.

The justification for this is wrapped up in the smoke and mirrors of the planning system, but essentially the Government cannot afford to fund infrastructure out of our taxes by the look of it so the 'developer pays' principle is moved heavily front and centre. Arguably this has been the case for some time, but the whole 'Planning Gain' system will now be consolidated into a cash-card based contribution.

All local authorities will eventually have a charging schedule and a small number of authorities are trialling the system at the moment. 

Draft CIL schedules have recently been produced by the Mayor of London [ http://www.london.gov.uk/publication/mayoral-community-infrastructure-levy ]and Newark & Sherwood District Council [ http://www.newark-sherwooddc.gov.uk/pp/Gold/ViewGold.asp?ID=5531 ]. 

The latter is very informative and shows differential charging rates for various parts of the District. It also shows the detailed assessments made that have lead to the charging schedules in accordance with the guidance. £50 per metre seems to have become a common benchmark figure, but rates vary by type of project. A zero charging sum is evident in the schedules - for affordable housing for example.  Average charging rates are calculated based on development value assessments for differing projects types.

Originally introduced by the Labour Government and initially scheduled to be revoked by the coalition, CIL has evidently had a reprieve and been updated. Last month saw an amendment to the original Regulations to clarify certain technicalities and a new guidance document has just been released
 http://www.communities.gov.uk/publications/planningandbuilding/communityinfrastructurelevymay11 ] which provides the whole story.

In the mean time what will this mean for day to day planning?

Developers will be able to assess their CIL at the outset based on the sq m to be built. There will be certainty over commitment and locals will know just how much is being generated from the scheme and what it will be applied to. (Well that's the theory anyway).

Planning consultants will have to become mathematicians and start applying the CIL calculations to development schemes (my head is already beginning to hurt). The new Regulations do allow for undertaking works instead of paying the charge so there will still be negotiations. And Section 106 agreements will still be required, but this time to ensure that the authority that is trousering the cash actually provide the relevant infrastructure - rather than just putting it in the Council coffers to pay for the next fact finding mission to the Seychelles or whatever. You can imagine a situation where a scheme is dependent on a new bypass, or trunk sewer that never materialises. That is going to put a crimp in anyone's development delivery programme.

I rather think that - in the end - developers may start comparing and contrasting charging rates within and between authorities in order to find a site at a lower CIL cost. There would be opportunities for authorities to outbid (i.e. under-charge) their neighbours to gain beneficial development, although I expect location, location, location will still be the predominant market driver.

What the CIL may do is help reduce land values - and this is perhaps the eventual outcome.

In the mean time, enjoy the read and watch this space for further info as CIL begins the evolve.

Neighbourhood Plan pilots announced

(from the Planning Portal 7th April 2011)

The first 17 communities to test neighbourhood planning, a key feature of the Localism Bill, have been named by Decentralisation Minister Greg Clark.

People in these communities - a mix of cities, urban and rural areas - will be able to decide the types of development given automatic planning permission through a Neighbourhood Development Order.

If approved by a local referendum, a council will need to adopt a neighbourhood plan providing it is line with wider ambitions for growth in their area.

Greg Clark said:"Planning has increasingly become one of the most contentious issues in Britain, with communities becoming pitted against development. By giving local people a greater say together with new incentives to share in the benefits of growth, our reforms will help to create the conditions where communities begin to welcome development rather than resist it at all costs."

The 17 neighbourhood planning front-runners will be led by local authorities who will work with community groups and parish councils to prepare draft plans and Neighbourhood Development Orders.

Each of the 17 areas will receive £20,000 towards developing their plan from a £1m fund set up to help communities eager to trial neighbourhood planning.

A further 33 grants of £20,000 will also be awarded from the fund to projects that applied to be front runners. This is to help them carry forward their plans on their own.

The 17 pioneers involve the following local planning authorities and communities:

·         Birmingham City Council - Balsall Heath (Birmingham)

·         Bristol City Council - Lockleaze (Bristol)

·         London Borough of Southwark – Bermondsey

·         London Borough of Sutton – Hackbridge

·         North Tyneside Council - North Shields Fish Quay

·         Wirral Borough Council - Devonshire Park

·         Allerdale Borough Council – Cockermouth

·         Blaby District Council – Blaby

·         Cherwell Borough Council – Banbury

·         Exmoor National Park Authority – Lynton

·         Gedling Borough Council – Newstead

·         Lewes District Council – Ringmer

·         Northumberland County – Allendale

·         Shropshire Council - Much Wenlock

·         Teignbridge District Council – Dawlish

·         West Dorset District Council - Cerne Abbas

·         Royal Borough of Windsor and Maidenhead – Bray

Meanwhile the Town and Country Planning Association has launched a new guide to help communities deal with neighbourhood plans. The guide ‘Your place, your plan’  http://www.tcpa.org.uk/data/files/your_place_your_plan.pdf is designed to help local people get involved with shaping their area through the planning process and is aimed at people with no previous knowledge of the planning system.

Hugh Ellis, TCPA chief planner, said: “All the jargon around planning can be a real turn-off. But people don’t need to learn a new language. At its heart, planning is all about creating a picture of your community’s future. This guide is all about showing how local people can really influence their area, either through the newly proposed neighbourhood plans, their local plan or other community-led vision documents.”