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In one of his last deeds as departing Housing Minister, Christopher Pincher, used his powers under S62A of the Town and Country Planning Act 1990, to issue a designation notice to Uttlesford District Council in respect of major planning decisions. S62A enables the Secretary of State to designate Local Planning Authorities where “there are respects in which the authority are not adequately performing their function of determining applications”[1] and in doing so give applicants the choice to apply for permission direct to the Secretary of State (with the application determined via the Planning Inspectorate) for the category of applications (major, non-major or both) for which the authority has been designated. This is a notable undertaking. Uttlesford became only the fourth local authority to be designated under special measures, following Blaby District Council, Trafford Council and Bromsgrove District Council, with the latter being the last authority to be placed under special measures in January 2015. Whilst such a drastic step by Government has inevitably raised eyebrows, the more pertinent question becomes, is pursuing an application under S62A likely to be worthwhile to applicants? On the face of it, the ability to sidestep an underperforming local authority and seek a direct decision from the Secretary of State (via an appointed Inspector) might look attractive. As outlined in the S62A Procedural Guidance[2], there is a defined step-by-step timeline through a standard 13-week major application determination period. This provides an element of certainty that the application will be dealt with in a timely manner, something which is not a given for an undesignated LPA. If we take Uttlesford as an example, in the 24 months to Sept 2021, just 14.9% of major applications were determined within 13 weeks and even those that were subject to an extension of time, only 76% of decisions were arrived at within the agreed time period[3]. However, there are a number of potential drawbacks or uncertainties associated with the S62A process. Whilst there is a set procedural timeline, there does not appear to be a clear timescale to the appointment of an Inspector. PINS will not provide prospective s.62A applicants with an indicative timeline for the allocation of an Inspector after an application is made. Will S62A applications be prioritised, or will applicants have to ‘wait in the queue’ with the already significant PINS caseload of local plan examinations and appeals? Government data from January 2022[4] confirms that a S78 appeal conducted through a hearing on average takes 72 weeks from submission to a decision, which might suggest inherent delays in the appointment of an Inspector. Whilst performance in respect of inquiry timescales has improved since the implementation of the Rosewell Review findings in February 2019, the time periods in other parts of PINS casework have extended. Notably, the average timescale from submission to decision for hearings has risen from 39.9 weeks in the 12 months December 2019 to 2020[5], to 46.6 weeks to December 2021[6] and as noted above is now at 72 weeks for the month February 2022. Meanwhile, planning inquiries have fallen from an average of 47.3 weeks to 41 weeks over the same time period.  This potentially suggests that other areas of PINS have been squeezed by the emphasis placed on reducing time taken for inquiries. Where will progressing S62A decisions sit on the spectrum? Further, where the prospects of approval are uncertain, does the S62A process give applicants confidence their decision has the best prospects of success? Under the terms of the Act, the initial determination of the application is provided by an Inspector and there is no provision to appeal that decision or indeed to appeal against any of the conditions imposed on a permission granted under Section 62A. In essence, S62A gives an applicant an ‘all or nothing’ shot at securing a permission, without the benefit of being able to test a refusal via a s.78 appeal, potentially at a public inquiry[7]. But s.62A applications to PINS do not involve public inquiries, even for complex planning applications. The lack of an inquisitorial process for the ‘all or nothing’ determination of a high-stakes application can be a concern. The LPA and the relevant statutory consultees will be consulted by PINS, but the S62A hearing provides only the opportunity for the appointed Inspector to seek clarity on certain issues and does not provide the opportunity for cross examination. As the Guidance[8] confirms: “The format of the hearing is different to hearings held for planning appeals. Questions may be asked of participants by the appointed person, however, it is not an inquisitorial process and there will be no testing of evidence or cross-examination of expert witnesses.” The ability to cross examine and interrogate a local planning authority’s assertions cannot be underestimated. If one considers the latest version of the Appeals Database produced by PINS[9], and reviews planning appeal decisions that have been decided at an inquiry or hearing, the success rate at inquiry is 58% as opposed to a hearing success rate of 39%[10]. Whilst the ability to cross examine won’t be the only factor determining this differential, it is nonetheless a matter for consideration. In the case of Uttlesford, there is no up-to-date local plan, so any major scheme on an unallocated site will be determined in a relative local policy vacuum, leading to inherent uncertainty about the principle of development. In combination, the above makes the S62A an enigma for prospective applicants. How quick will a decision be secured given the unknown timescale for appointing an Inspector? And if the process – involving only a narrowly defined hearing – leads to a refusal from PINS, there is no recourse for matters to be considered at a subsequent appeal via a public inquiry; how confident is the applicant their scheme will secure a positive decision? Perhaps this explains why take up of S62A by applicants has been so limited. A COMPASS search[11] revealed only one such application, from 2014, by Gladman for 220 homes and a school drop off/pick up zone on a 17.4-hectare site off Hospital Lane, Blaby. It resulted in a refusal[12].      So, for those with prospective schemes in Uttlesford, the S62A order presents a conundrum. Is speed of process an overriding factor (the aforementioned 2014 decision took 90 days from validation to decision)? Is there sufficient degree of confidence that an approval will be achieved on first submission rather than requiring an appeal? Government/PINS could perhaps make S62A a more compelling choice by providing clear guidance on timelines for appointment of Inspectors and also provide for a public inquiry format for more complex schemes that might otherwise face public inquiry if appealed under normal circumstances. Absent that, S62A might remain one of those planning reforms – like Starter Homes and 5YHLS Annual Position Statements – that are announced to fanfare but don’t get the level of take up their advocates anticipated. [1] Section 62B(1)(b) of the Town and County Planning Act 1990[2] Available here[3] Planning Inspectorate Appeals Data available here[4] Government Guidance, Appeals: how long they take available here[5] The Planning Inspectorate: Statistical Release December 2020 available here[6] The Planning Inspectorate: Statistical Release December 2021 available here[7] Obviously, there is the power of judicial review but this is limited to matters of legal error, and does not address matters of planning judgement.[8] Government Guidance, Procedural Guidance for Section 62A Authorities in Special Measures available here[9] Planning Inspectorate Appeals Data available here[10] Only relates specifically to planning appeals that were determined during 2021[11] COMPASS is a searchable planning appeals database of over 170,000 decisions[12] Application Reference S62A/2014/0001 Land to the North of Hospital Lane and to the east of Bouskell Park, Blaby, Leicestershire available here  


Can a national planning policy push for housing coexist with neighbourhood plans?
Can a national planning policy push for housing coexist with neighbourhood plans? | | NLP Planning Matters Can a national planning policy push for housing coexist with neighbourhood plans? – NLP Planning Matters Around one month ago the number of neighbourhood plans taken to referendum reached the milestone of 100. This is a particularly impressive figure given the rather inauspicious and slow start that neighbourhood planning experienced, and as recently as April 2014, only 13 neighbourhood plans had been endorsed at referendum. The introduction of neighbourhood planning through the Localism Act 2011, brought into effect in April 2012, was seen by the Government as something that would play a key role in returning power from Whitehall back to local people and facilitating communities shaping development in their area. The neighbourhood plan process has previously come under criticism from some developers, due to the perceived lack of rigour in how such plans consider housing need and requirement, and how they are then scrutinised by examiners. There is a genuine fear that localism – in particular the neighbourhood plan process – is being deliberately used to limit development rather than expediting local solutions to meeting sustainable development needs in the local area. A fitting quote comes from Paul Tucker QC, who proclaimed in January 2015 that “whatever the political shade of the next government, it must prevent localism becoming parochialism”. During early 2015, examples abounded where appeals were rejected by the then Secretary of State with reasoning given that the development would conflict with the neighbourhood plan or that it would prejudice an emerging neighbourhood plan. Evidence of this approach was identified by NLP[1] , demonstrating a distinct reluctance of the Secretary of State to issue appeal decisions that went against the neighbourhood plan, despite in a number of cases, having to go against the inspector’s recommendation. However, a recent appeal decision by Communities Secretary Greg Clark, to allow 39 homes on the edge of Earls Barton, Northamptonshire on a site not allocated for residential development in the then emerging Neighbourhood Plan, could indicate a shift in approach, as the Government’s response to the housing crisis perhaps supersedes those pre-election jitters. The timing of this decision is notable for a couple of reasons. The first is that the decision appeared in the press just twelve hours after the resounding ‘yes’ vote in the Earls Barton neighbourhood plan referendum, ensuring that the Plan must be made by the local planning authority.. It was therefore a bold political judgement to go against it, although the decision did state that the Plan was an, “important material consideration”. The appeal was allowed on the grounds that the Council could not demonstrate a five year supply of deliverable housing, and it was subsequently argued that despite the neighbourhood plan being at an advanced stage, the “relevant policies for the supply of housing, including the proposed village development boundary, should not be considered up to date” reflecting the NPPF para 49. The decision was issued just before the recently introduced Housing and Planning Bill began to be debated in Parliament, a piece of draft legislation that boosts Secretary of State intervention powers in neighbourhood plans (for the most part for their benefit) yet that has stoked accusations of being the ‘end of localism’ from Labour opposition. Indeed, even backbench Conservative MPs have expressed their concerns over the Bill, imploring Cabinet Ministers to ‘keep faith in localism’. Notwithstanding the politics, the Earls Barton decision appears also to be a direct consequence of recent blows that emerging neighbourhood plans were dealt in the High Court, in Woodcock Holdings Limited vs Secretary of State for Communities and Local Government (May 2015)[2]). The judgment that too much weight had been given to the emerging neighbourhood plan resulted in the reversing of the decision to refuse a 120 home development, in circumstances where the local authority could not demonstrate a deliverable five year housing supply. A second case in October 2015, Villages Action Group vs Secretary of State for Communities and Local Government[3], also considered that the Inspector was correct to ignore a neighbourhood plan as it was currently still in early stages of preparation and had not been made. These decisions demonstrate that emerging neighbourhood plans, although obviously important parts of the development planning system, will not necessarily trump national policies set out in the National Planning Policy Framework (NPPF). This situation does not remove the benefits that may nevertheless exist for developers in engaging positively in preparations for neighbourhood plans to secure allocations that help meet the local needs of that community. There are increasing examples of positive joint working to that end. However, even where there is a neighbourhood plan in place, it is not the end of the story. Many neighbourhood plans proceeded in advance of local plans being adopted for the wider Council area, and they have not always engaged fully with meeting housing and economic development requirements that have been derived from full, objectively assessed needs. Now that local plans have an ‘early 2017’ deadline for publication, it is distinctly possible that conflicts may emerge between local plans seeking to find sustainable development options for meeting housing requirements, and recently made neighbourhood plans. The national Planning Practice Guidance (PPG) confirms[4] the provisions of section 38(5) of the Planning and Compulsory Purchase Act 2004, that decisions on planning applications should favour the policies of the most recent development plan document. In these circumstances, newly adopted local Plans in the future may end up superseding even the most recently made neighbourhood plans. What impact will this have on communities’ confidence in the system? As we move forward towards the New Year, it will be interesting to see whether Government continues to emphasise housing delivery over neighbourhood planning in situations where there are conflicts, thereby reversing the pre-election, Coalition trend. Whatever happens, neighbourhood plans are clearly here to stay: Housing and Planning Minister Brandon Lewis has claimed that neighbourhood planning is boosting housebuilding by 10%. The Government seems convinced that neighbourhood planning can sit happily alongside an increasingly pro-house building Government. That may be so, but it certainly won’t be an easy ride.This blog is the first in a two-part series by NLP, commenting on neighbourhood planning and culminating in the release of a research project at the end of November. [1] [2] [3] [4] ID: 41 009 20140306