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Planning matters

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Distribution to data: A story of planning prejudice
James Fennell’s sabre rattling blog ‘Finking about Future Opportunities’ pointed towards exciting times ahead, as the planning sector responds to an array of new challenges in a rapidly changing market-place. As part of Lichfields’ 60th anniversary celebrations, he prefaced a series of blogs to follow on from his crystal balling, that examine prospects in different parts of the property market. As leader of Lichfields’ infrastructure offer, the blog baton has quickly passed to me.   You might think an infrastructure-themed blog would naturally focus on planes, trains…. and energy, perhaps showcasing Lichfields’ myriad of work in these pub-profile projects. But ‘infrastructure’ as a sector extends further than those schemes that get a minute on the 10 o’clock news just before the funnies. A sector that is central to the successful operation of UK plc, underpinning pretty much all economic activity is worthy of inclusion within the increasingly fashionable infrastructure sector. I’m talking about logistics: the facilitator of economic growth; the protector of our cost of living; and a key to the UK’s economic competitiveness.   The status of the HGV driver in public perception has never been higher. Critical workers certainly, and whilst perhaps the highest-profiled evidence of their important role incorrectly focusses on toilet rolls (a shortage brought about by panic buying rather than any collapse of the distribution chain), Government has stepped in to ensure our planning friends correctly give weight to driver’s needs. The warehouse buildings which they serve also deserve a higher profile in planning decisions. I recall that one of my first inquiries was focussed on a local authority’s attempt to secure delivery of a ‘sustainable business park’, which in policy terms translated to a simple ban on warehouse and logistics development. That warehousing could actually positively contributing towards a sustainable way of living was at the time a nuance completely ignored, and we were faced with the familiar task of justifying (ultimately successfully) that the job creation ratio for B8 development was still sufficient to justify the development.    Disappointedly, this prejudice against B8 in the planning system, despite the helpful additions to the NPPF (paragraph 83), continues today in some parts of the country. Only last year, I witnessed an authority happily reject the principle of B8 allocations in its Local Plan, despite an evidenced and unchallenged need for more space, on the grounds that there was ‘not enough room to accommodate it’. Instead we see a penchant for ego-massaging glass-clad business parks, offering promises of high job ratios, global HQs and national recognition. All this is marvellous, but tends to rely on such allocations being successfully built out and occupied by the blue chips they are designed to attract. Plus this rather ignores the attractive job creation characteristics of the distribution sector and the range of opportunities available therein, often well-suited to local social economic demographics. It also ignores the acute need for more strategic warehousing. Much is made of the ‘perfect storm’ in logistics, referencing how we are all now shopping; the desire of business to increase on-shore stock v’s just in time demand, and the combined impacts of Brexit, Covid and the Ever Given at Suez. Whilst the relative importance of each of these factors is open for debate, the combined implication is less so –there is strong demand for new warehouse space across the UK. Thankfully, we are seeing a growing recognition within planning decisions that a failure to provide for this demand will have significant economic implications - not just toilet rolls, but on the Country’s ability to function sustainably and efficiently. Each planning appeal decision, of course, is subject to its own unique set of circumstances but the increased weight given to meeting demand for B8 floorspace is very welcomed. Hopefully the days of dismissing B8 as the ‘inferior’ and unwanted employment use have passed.   History does have a tendency to repeat itself. Working on a new data centre proposal, I overheard Members discussing the relative merits of the new 100MW facility, noting support for every aspect of the scheme, other than the fact it was a data centre. A familiar land use prejudice and perhaps understandable when presented with simple job creation characteristics of this new type of infrastructure proposal. The wider role of data centre development in the efficient and successful operation of UK plc is a challenging story to relay, not helped by an ignorance of what they actually are, and how we all benefit from their provision. Challenging colleagues to give me an appreciation of what a data centre actually is rarely elicits a response beyond “buildings that store data”. In truth, they have an increasingly important role in supporting pretty much everything we do online.  Data centres are responsible for data backup and recovery, as well as networking, hosting websites, managing e-mails and instant messaging services. They support cloud storage applications and e-commerce transactions. Even the apparent insatiable appetite for online gaming (witnessed first-hand in my household) relies on the presence of data centres. They are essential for the individual, for business, for Government; for cities and for countries. How this critical economic role can be accurately quantified to appropriately influence planning decisions is what is (almost) keeping me up at night. As a starting point, it would be helpful to see some specific policy guidance on the need to support data centre development. We enjoy the positive recognition provided to high technology industries in the NPPF (para 83) noting that as above, this same paragraph gives a ‘leg up’ to the distribution sector, but alas such is the scope of this description, it remains of questionable value and often limited weight to data centre promoters.  We need to get to a position where there is recognition in policy that data centres are good things, playing an essential role in supporting the economy. Until this is in place, we will struggle against those who focus an assessment of a scheme’s virtues with reference to simple job numbers.  We have been there before and as a consequence, we are faced with an a shortage of strategic distribution development opportunities. We really can’t afford to let the data centre become the next shed, dismissed as someone else’s problem, pushed aside for traditional employment uses that promise more locally, but deliver far less to a successfully operating economy. Image credit: Brett Sayles via Pexels


EIA Insights: scoping opinions - a process to help or to hinder?
In 2014, the European Parliament adopted further amendments to the 2011 Environmental Impact Assessment (‘EIA’) Directive, aiming to ‘simplify the rules for assessing the potential effects of projects on the environment’. Despite the United Kingdom’s pending exit from the European Union, the requirement to transpose the Directive into national legislation by May 2017 remains (my colleague Liz Evans has covered in detail in a previous post why).In the last few weeks, both Scotland and Wales (NLP’s summary can be found here) have started their respective consultations on transposing the Directive into their own Regulations, and environmental practitioners are awaiting consultation on how the Directive will be transposed into English legislation.Over the coming weeks, as consultation continues, NLP will look at various elements of the Directive, and what implications they are likely to have on EIA.One of the changes proposed by the Directive that has the potential to have a considerable impact on how EIA is undertaken throughout the UK is the requirement that, where a scoping opinion is issued by a determining authority, an EIA ‘report’ (the revised name for an Environmental Statement in the Directive) shall be “based on that opinion, and include the information that may reasonably be required for reaching a reasoned conclusion on the significant effects of the project on the environment”.Although voluntary, the current process of EIA scoping is a very valuable tool when undertaking assessments, as it allows developers to agree what topics should be assessed and how assessments should be undertaken. The scoping process is a non-binding tool, which allows for discussions between consultants and the determining authority to continue to engage on methodologies beyond issue of the opinion and as a scheme evolves in design. Common practice sees a request for a scoping opinion detailing a scheme in a ‘worst case’ scenario. Should design changes prior to submission of an EIA report affect how a methodology has been agreed in the scoping opinion, the non-binding nature allows flexibility of approach, and the current process allows an EIA report to explain any changes.Whilst the Directive will allow revised Regulations to retain the voluntary nature of the EIA scoping process, does it allow retention of the flexibility for developers and consultants to amend their methodologies as a scheme evolves, if a scoping opinion has already been issued? On first view it would appear not, and it would suggest that a developer would have to seek a further scoping opinion (or multiple) to agree any changes. Given the statutory five-week process for issue of an opinion under the current Regulations, this could potentially lead to lengthy delays before submission.This amendment also potentially shifts the focus of the EIA scoping process from that of a helpful guide for methodologies within an EIA report, to a procedural set of handcuffs for a proposed development.If this is the case, does the Directive discourage the voluntary scoping process? Seemingly it does, however not seeking a scoping opinion could delay the determination of an application post-submission, presenting potentially bigger risks for a developer. The absence of a scoping opinion prior to submission gives no certainty to the content of an EIA report, and could delay the decision-taking process.This certainly appears to place increased importance on the timing of seeking a scoping opinion. Scope too early and the opinion might be out of date by the time of submission, but scope too late and the opinion might arrive too late to robustly include its requirements.Additionally, from a determining authority’s point of view, there is the potential that mandatory implementation of scoping opinions could result in authorities taking a more risk-averse approach and asking for more information at the scoping stage than would otherwise be needed to consider the significant effects of a development.By way of example, we have reviewed the Welsh consultation on its changes to the EIA Regulations which suggests amending (increasing) timescales for issuing scoping opinions to address this Catch-22 situation. Whilst this might allow a determining authority sufficient time to consider a development and provide a proportionate response, it doesn’t necessarily address the issue of how to amend a methodology as a scheme evolves, between the time of the scoping opinion being issued and the EIA report being submitted.It is hoped that the Regulations, when they do come into force, will clarify the implications of an EIA report being robust for submission but not meeting the requirements of an issued scoping opinion, in order to avoid delays to schemes post-submission. It is also certainly hoped that the Regulations allow the scoping process to retain its flexible and iterative nature rather than be bogged down in procedure which would restrict any assessment work.Are there any obvious solutions to this conundrum? Perhaps we could be heading down the route of scoping opinion addendums that could be issued quickly by determining authorities to update their scoping opinions? We do know the EIA process does like an addendum...