Planning matters

There has been no rest for the Welsh Government’s planning team this summer with a further consultation now underway following Royal Assent of the Planning (Wales) Act last year. These latest proposed changes relate to appeals and call-in procedures, with a focus on:

• Ensuring a more proportionate, cost effective and streamlined process;
• Increasing the speed of decisions;
• Increasing transparency; and
• Increasing fairness for all parties.

Key proposed changes include:

1. The requirement for a full Statement of Case[1] to be submitted to the Planning Inspectorate at the outset, in most cases, instead of the current requirement of 6 weeks after the start date.

2. LPA questionnaires and notification of interested parties to take place within 5 working days of the starting date, compared with the current 2 week timeframe.

3. Representations from the LPA and interested parties to be made within 4 weeks of the start date, compared with the current 6 week timeframe.

4. Final comments on the LPA and interested party comments by all parties to be made within 6 weeks of the start date.

5. The removal of the requirement to agree Statements of Common Ground (SoCG) but they would still be encouraged.

6. The written representations procedure as the default procedure for all appeals or call-ins. Although, the examination method could be tailored to the specific requirements of the appeal or called in application creating the opportunity for multi-mode examinations e.g. part written representations/part inquiry. Inspectors can already decide which examination method to follow.

7. Inspectors to be permitted to request further statements of up to 3000 words on certain matters to seek to avoid the need for a hearing or inquiry where the matter can be clarified in writing.

8. The focusing of topic based sessions by limiting participation in inquiries or hearings to only those invited by the Inspector.

9. New matters could not be raised during an appeal unless it was demonstrated that: the matter could not have been raised at the time the LPA was considering the application; that the matter raised was a consequence of exceptional circumstances; or, the restriction on amendments would not affect any requirement to have regard to the provisions of the development plan or any other material consideration.

10. Changes to an application to be made only where there is a drafting or drawing error and those changes would not affect the substance of the application.

11. Costs to be awarded to parties for written representation appeals where parties are deemed to have behaved unreasonably.

12. Similarly, costs could also be awarded to Welsh Ministers for unreasonable behaviour of the parties involved in the appeal (in order to protect the public purse).

13. An application for the award of costs would need to be made at the earliest opportunity such as at the submission of the statement of case and/or where appropriate within the 4 and 6 week deadlines from the start date. Where an application for costs was necessary to cover unreasonable behaviour during proceedings a statement would also need to be included expressing why the application for costs could not have been submitted at an earlier stage.

14. The Planning Inspectors or Welsh Ministers to be able to award costs to any party in the proceedings even where no application for costs has been made by individual parties.

The likely implications for appellants are mostly constructive but would require a greater front-loading of work with limited opportunities to raise new matters at a later stage. The mixed mode appeals should introduce a pragmatic means of dealing with straightforward issues. The most significant proposal would be the removal of the opportunity to make any changes to the appealed scheme. Whilst theoretically this should make the appeal process itself more efficient, overall this may well delay timely development taking place when compared with the current ability for LPAs and appellants to reach an agreement on non-prejudicial changes without the need to resubmit a planning application.

The proposal to enable Planning Inspectors or Welsh Ministers to award costs even where no application is made should certainly assist in focusing the minds of all parties in the appeal process. With the front-loading of work for the appeal there is a risk of higher cost awards against LPAs in cases where spurious reasons for refusal are given but subsequently not defended at appeal.

Responses to the consultation must be submitted by 4 November 2016. If pursued the proposed changes to the regulations and guidance will be introduced in early 2017.

Changes are also proposed to enforcement appeals and standard daily costs for certain circumstances such as examination of local development plans, we can discuss these with you if they are of interest.

Please contact Helen Ashby-Ridgway, Associate Director, 02920435880 for any further information.

The town planner… elbow patches on the jumper, well-worn cords, comfortable shoes, never without a packed lunch/flask and epitomised by a fetish for maps. Fettered by rules and regulations, but seemingly willing more red tape in which they can immerse themselves and their expertise. The geek of the property world no doubt, but a necessary part of the process, one our clients wouldn’t want to do without (we hope).

Not, of course, my view of this wonderful profession and the people in it, although perhaps an opinion held by some…

But wait – what’s this, could it be, surely not?! All this time, the contemporary planner hails from similar stock to Johnson-Thompson, Peaty and Hodgkinson. That’s right, people of the property world, town planning was an Olympic event and all who practice it are, by the most tenuous link possible, of Olympic pedigree.

For four consecutive Games (1928-1948) town planning was part of the Olympics, gold medals and all. In the 1932 Games in Los Angeles, John Hughes (me neither) won Gold for GB for ‘Design for a Sports and Recreation Centre with Stadium, for the City of Liverpool’ (solid name, nowadays it would be ‘Project Badger’ or something similarly abstruse). I cannot confirm whether it was actually built (nothing new there perhaps…) but I’m pretty sure the victory was thoroughly well-deserved. And all without the natural advantage of the winners at the following Games (Berlin 1936) where the victorious pair, from Germany, won for the planning of the actual Olympic stadium.

So why did the medals stop I hear you cry? Well I’m informed[1] there was concern that the winners would benefit professionally from victory, not of course in the spirit of the Games and its amateur roots. Having said that, every time I switch on the TV at the moment, whether it’s trainers, broadband, cars, watches, credit cards (I could go on), it looks like Usain Bolt is benefitting pretty nicely on the back of being an Olympic champion. In fact the professional benefits seem to be part of the deal nowadays and this therefore begs the question – why not bring it back???

I can imagine it now. Team GB’s Planning Team. Bye bye ill-fitting short sleeve shirts and non-ironic hand woven ties… Hello Stella McCartney-designed Adidas tracksuit (iconic 2012 vintage of course). Winter training camps in sunnier climes (i.e. the Isle of Wight), being pulled out of committee meetings for random drug tests and arriving at the Olympic Village only to redesign its place-making strategy and scrutinise the cycle parking provision.

OK maybe not. But during this Olympic period, why not spare a thought for our predecessors, Olympians in their own right, and wonder what it might be like to go for gold in 2028…

“And the gold medal for town planning goes to……”

Well, that’ll be Lichfields of course…

 

NLP’s recently published TRIP – Neighbourhood Plans: In theory, In Practice, In The Future – has received significant public interest since its launch earlier this Summer, appearing in articles in professional journals such as The Planner and Planning Resource. NLP’s research and recommendations have also received political attention, featuring in a House of Commons Briefing Paper on neighbourhood planning.

As a follow up to this research, I have looked further into the relationship between Local Plans and Neighbourhood Plans.

Once ‘made’, a Neighbourhood Plan is part of the Development Plan and forms a key part of the decision-taking process. Whilst Neighbourhood Plans represent a significant tool for local communities to shape development, the National Planning Policy Framework (NPPF) is clear in stating:

As such, the slow rate at which Local Plans are being adopted has resulted in a scenario where Neighbourhood Plans are coming forward ahead of the Local Plan – or ‘bypassing’ the Local Plan. This can result in policies and housing allocations coming into force which are not subject to the same preparatory requirements as those in a Local Plan.

NLP analysis shows that 62% of ‘made’ Neighbourhood Plans form part of a Development Plan alongside an out-of-date Local Plan. A further c.960 designated Neighbourhood Plan Areas are located within local authorities which do not have an up-to-date Local Plan.

Whilst it is acknowledged that the Government is setting a deadline of ‘early 2017’ for LPAs to prepare a Local Plan, the pipeline of emerging Neighbourhood Plans (as shown on the map below), together with the less rigorous path to becoming part of the Development Plan, suggests that the ‘bypass’ trend will continue.

Even though many emerging Local Plans across the country are at an advanced stage in their preparation, Neighbourhood Plans are not necessarily adhering to their draft strategic policies.

To provide clarity on this position, the national Planning Practice Guidance (PPG) states that Neighbourhood Plans can be brought forward before the Local Plan. In such instances, the PPG advises that a Neighbourhood Plan should then follow the strategic policies of the Development Plan in force. However, in many cases, this comprises a Local Plan which can be a decade old, clearly out-of-date and not entirely consistent with the NPPF. In this event, the requirement for Neighbourhood Plans to have regard to emerging Local Plans is less clear.

The PPG does, however, advise that the evidence base behind an emerging Local Plan (such as the objectively assessed housing need and the housing requirement) is likely to be relevant to the consideration of whether a Neighbourhood Plan meets basic conditions.

Where possible, having regard to the emerging Local Plan evidence base should be in the interest of the Neighbourhood Plan-making body. If a Local Plan were to be adopted after a Neighbourhood Plan, and they contain conflicting policies, in accordance with Section 38(5) of the Planning and Compulsory Purchase Act 2004, the decision-maker must favour the more recent policy. This could lead to Neighbourhood Plans becoming out-of-date, following the adoption of the Local Plan.

In most instances, Neighbourhood Plans are consistent with emerging Local Plan strategic policies and this is often due to the positive cooperation between the Neighbourhood Plan-making body and the LPA. However, where this evidence base is yet to be progressed, and a Neighbourhood Plan has established a housing requirement, it begs the question as to whether an LPA would develop a Local Plan with conflicting policies. This is an important scenario to consider, to ensure that Neighbourhood Plans do not prejudice the preparation of the Local Plan.

With this in mind, it highlights the importance of effective engagement between the LPA and Neighbourhood Plan-making body during preparation, to ensure that the Local Plan and Neighbourhood Plan will operate effectively together, with both being part of the Development Plan. In particular, the LPA has a key role to play, in resolving any conflicts between a Neighbourhood Plan and emerging Local Plan.

As recommended in NLP’s Neighbourhood Plan research, it is also important for landowners, developers and other interested parties to engage with the Neighbourhood Plan-making process in the same way as with the Local Plan process.

What is clear is that neighbourhood planning is here to stay, featuring prominently in the Queen’s Speech with the announcement of a new Neighbourhood Planning and Infrastructure Bill to support neighbourhood plan-making. Following the recent ministerial changes, NLP will also be closely monitoring the implications for neighbourhood planning.

In response to the issues with Local Plan-making, the Local Plans Expert Group (LPEG) has identified a series of recommendations that would help speed up the process to adoption.  At para S32, the LPEG report also states that:

“If these recommendations are accepted, we further recommend that Regulations should be introduced to require local plans to be complete within two years from first engagement to final submission.”

This represents a further measure to address the ‘bypass’ trend and assist in creating an appropriate structure to guide the preparation of Neighbourhood Plans.

Whilst I consider that things have not quite panned out as intended, it is essential that all interested parties engage in order to achieve the best end result and a consistent Development Plan providing clarity and certainty for local communities, landowners and developers alike.