Wednesday 21 December 2011

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.

Saturday 17 December 2011

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.

Saturday 10 December 2011

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.

Sunday 4 December 2011

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 1st 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!