Planning matters

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Decisions, decisions!

Decisions, decisions!

Chris Smith 31 Aug 2018
The pressing need to build more new homes has gained significant traction in recent years and it is identified now as a national crisis. After featuring prominently in the 2017 political manifestos, Prime Minister Theresa May has identified that the number one domestic priority is to increase the rate of house building to 300,000 homes a year by the mid-2020’s[1]. Delays in house building are often blamed on the planning system and, more recently, accusations of land banking have surfaced frequently in the media. In response, an independent review – led by Sir Oliver Letwin – was commissioned “to tackle barriers to building”. Much of the attention has concentrated on trying to understand the reasons for delays after development proposals have been approved, however there has been little said about the trials and tribulations of reaching this position. It is very rarely straightforward and the determination process can be frustrating when there do not appear to be any outstanding concerns, yet an application is refused by members against an officer recommendation for approval. At the Planning for Housing Conference on 4 October 2017[2], a local council leader told a conference seminar that planning committee members rely on the advice of officers “nine times out of ten times” and that members are “rarely party political and tend to make decisions more on the basis of geographical or local knowledge”. In our experience, these statements perhaps underestimate just how often this occurs - particularly with applications for major developments. The examples of two planning appeals in recent years for sites in the North East can be cited, which followed applications that had been refused by members contrary to officer recommendations. As both appeals were subsequently allowed, the obvious questions were (a) whether the appeals could have been avoided and (b) how much time and cost (for both sides) having to go to appeal had added to the process. Time and money are particularly relevant, when there is a clear need to speed up the rate of building new homes. At the time of submitting a planning application for a major development proposal, applicants can (in theory!) expect to receive a decision within the statutory 13 weeks. Where a planning application takes longer than the statutory period to decide, the Government’s ‘planning guarantee’ states that a decision should be made within 26 weeks and that “no application should spend more than a year with decision makers, including any appeal”[3]. To put this into the context of these two appeals, one complied with the ‘planning guarantee’ however the time from submission of the planning application to receiving the appeal decision for the second case extended well beyond the Government’s policy at 23 months.  These timings do not actually tell the full story as for each scheme an earlier planning application had been refused; new applications had been submitted and the development proposals considered at appeal represented revised proposals. Following the refusal of the earlier applications, in each case the applicant had sought to address the issues raised locally and used the appeal process only as a last resort. Therefore in these examples, the true length of time it has taken to achieve planning permission for each site, from submission of the earlier planning applications to receiving the appeal decisions for the revised schemes, is 34 months and 42 months respectively. Lichfields’ Refusal for Good Reason, published last week, looks into the subject of members’ decisions against officer recommendations, to understand whether this is a common occurrence and to assess whether there is any issue with the quality of decision making. The research considered all appeals in 2017 for proposals of 50 homes or more. 78 out of the total 309 appeals (25%), as shown above, related to applications that had been refused against an officer recommendation for approval. 65% of these 78 appeals were allowed and, as a result, around 6,000 new homes could be delivered. In comparison, 40% of appeals were allowed in instances of officer-recommended refusal of planning permission. The research findings indicate that the percentage of allowed appeals (for applications refused against officer recommendation) is generally higher when the reasons for refusal relate to technical matters compared to appeals where the main issues are more subjective. Lichfields’ research also considered the time that an appeal can add on to the end-to-end housing development process. Of the 78 appeals considered, the average time from receiving a decision notice to the determination of an appeal was 11 months; however, this time period varies between 4 and 19 months. As shown below, the time period increases with the number of new dwellings proposed. For developments of less than 150 new homes, the average time from decision notice to appeal decision was 10 months; however, this increases to 13 months for developments of 150 houses or more. Generally, it is therefore reasonable to assume that an appeal is likely to add a year on to development timescales. So, in answering the questions posed above: Could the appeals have been avoided? It is important to remember that an officer recommendation is just that – planning committee members are fully within their rights to decide otherwise. Members should however ensure that their reasons for refusal are substantiated and within the legal and policy framework. Lichfields’ research found that the prospects of success at appeal are greater if an application has planning officer support and particularly if the member-disputed factors relate to technical matters. In contrast, the appeal outcome is more varied when the main issues are subjective ones, indicating that members can be justified in disagreeing with their officers’ recommendations in some instances. What time and cost do appeals add onto the process? It is clear that an appeal is costly for both sides and can add around a year to the development process. Many decisions going against officer recommendations will however go unchallenged therefore ensuring high quality decision making by councillors is a vital component in tackling the housing crisis. Lichfields’ research concludes with a series of recommendations to improve the quality of decision making which include: Requiring councils to seek independent advice where there is disagreement between the planning officer and members on a technical issue Allowing a ‘cooling off’ period for planning committee members to seek impartial advice about the prospects of defending their decision at appeal, when they are inclined to go against an officer’s recommendation. Requiring local planning authorities to publish statistics on decision making, to allow applicants to understand the likely need for an appeal. Reviewing the training given to planning committee members, which is not currently mandatory. [1] Autumn Budget 2017 – Building the homes the country needs: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/661430/Building_the_homes_the_country_needs.pdf[2] Planning Resource article: Planning committees in line with officers 'nine out of ten times (4 October 2017): http://www.planningresource.co.uk/article/1446496/planning-housing-planning-committees-line-officers-nine-ten-times[3] Planning Practice Guidance (Determining a planning application) Paragraph: 001 Reference ID: 21b-001-20140306 and paragraph: 002 Reference ID: 21b-002-20140306: https://www.gov.uk/guidance/determining-a-planning-application

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Neighbourhood Planning – First things first?
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: Neighbourhood Plans must be in general conformity with the strategic policies of the Local Plan’ (paragraph 184).As set out in NLP’s research, it is clear that the intention of the NPPF was for Neighbourhood Plans to follow the strategic aims of post-NPPF adopted Local Plans. Accordingly, NPPF paragraph 184 also states that: To facilitate [the preparation of Neighbourhood Plans], local planning authorities should set out clearly their strategic policies for the area and ensure that an up-to-date Local Plan is in place as quickly as possible... (my emphasis)   Despite the best intentions, and as analysed further in NLP’s Early Adopters and the Late Majority (April 2016), only 31% of local planning authorities (LPAs) have an NPPF-compliant and up-to-date Local Plan.   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.  

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