Planning matters

A change to local plan procedure is the most recent Housing and Planning Act 2016 measure to commence.  Section 145(5) of the Housing and Planning Act 2016 has inserted a new section 21A into the Planning and Compulsory Purchase Act 2004 (PCPA 2004) to enable the Secretary of State to direct a local planning authority not to take any step in connection with the adoption of a development plan document pending possible use of other intervention powers.

The existing local plan intervention powers provided by s21 of the PCPA 2004 are seldom used; the 2015 interventions in the Maldon Local Development Plan and North Somerset Core Strategy being the only examples we know of.  On this basis, one might have expected the new power in s21A (and not-yet-commenced amendments to s21) to have limited use, and be an unlikely candidate for early commencement.

Not so.  The new s21A power was used immediately: on the same day the Secretary of State directed Birmingham City Council ‘not to take any step in connection with the adoption of the Birmingham Development Plan 2031’ (an official copy of the letter is not yet available).  There had been vociferous local objections to at least one element of the Birmingham Development Plan (BDP), but no prior indication that there might be an intervention from the government - the Planning Inspectorate endorsed the BDP in April 2016, and BCC plans to adopt the BDP in July 2016, (this BCC press release provides details of the plan stages and summarises the BDP Inspector’s findings).

According to the Impact Assessment for the version of the Housing and Planning Bill introduced in the House of Lords in January 2016, the aim of the local planning measures in the Act (ss143-148) was that every local planning authority has a local plan in place.  So it is somewhat surprising that the temporary intervention measure has been brought into force in order to delay the adoption of the local plan for the local authority with the largest population in England, and one of the largest in Europe.

DCLG has intervened in response to the local MP’s ‘concerns about a proposal for 6,000 new homes on Green Belt land in Sutton Coldfield’, and BCC has expressed disappointment at the government’s intervention.

One wonders whether a challenge to the validity of the development plan (under s287 of the Town and Country Planning Act 1990) would have been a more appropriate route for those concerns to have been played out further?  Having said that, if DCLG officials were to swiftly advise that the Secretary of State does not wish to intervene, could it discourage opponents of the BDP from attempting a lengthy legal challenge through the courts that would delay local plan adoption significantly?  Could DCLG’s endorsement of the BDP (if forthcoming) - or another local plan in the future mean that an application to the High Court for a s287 challenge is less likely to succeed?

In other words, if DCLG chooses to temporarily intervene in a local plan process, perhaps due to concerns regarding the potential susceptibility of a local plan to challenge, could this represent a last ditch attempt to keep on track a plan that has followed due process in the face of significant local objection, rather than seemingly meddling in local politics?  And could it be an example of one of the ‘smarter tools for the Secretary of State […intended to…] allow for more focused and proportionate approaches to intervention’ referred to in the Impact Assessment?

It all remains to be seen, but in any event it is already questionable whether the power has been used to allow, as the Impact Assessment suggested, ‘the majority of local decisions to remain at the lowest appropriate level whilst ensuring a local plan is in place’.