South West planning news, June 2018

Bristol Airport has launched the second stage in its consultation on a new masterplan for the Airport, which sets out a vision to meet the Airport’s growth needs.

The emerging masterplan sets out details of short-to-medium term growth needs to meet the demand of 12 million passengers per year, with a longer horizon to 2050 when passenger demand is projected to reach 20 million passengers per year.

The masterplan is to be guided by five ‘pillars’: a world-leading regional airport; employment and economic growth; an integrated transport network; a sustainable approach; and deliverability.

Responses to the consultation are being invited until 6 July 2018.

A ‘New Frontiers’ plan has been published by the Cornwall and Isles of Scilly LEP, to revisit and guide the devolution deal for the area post-Brexit.

The Plan sets out how both investment from central government and local initiatives could drive the renewable energy, marine plastics, creative, space and lithium mining industries in the region. It positions the region as a pilot for a Local Industrial Strategy, as capable of trailblazing the Government’s 25 Year Environment Plan, and as a receiver of additional devolved powers and funding.

The LEP is seeking two elements from central government to facilitate the planning and delivery of new homes. Firstly, the LEP is asking for a £60 million fund for Cornwall, which is intended to provide infrastructure, bring forward stalled sites, and directly acquire land for housing. Second, the plan proposes a new model that would allow the Councils to identify new garden village sites for allocation and obtain the necessary powers for delivering the settlements. How this could be delivered is not explored in further detail, but the devolution plan reiterates Cornwall’s commitment to increasing housing delivery by 20% up until 2021.

The first services on the long-awaited MetroBus network commenced on 29 May, in a landmark moment in delivering Bristol’s public transport strategy.

The services will initially be run on the ‘M3’ route linking Emersons Green to the city centre, with services up to every 20 minutes. Services will be offered free-of-charge until 9 June in a bid to encourage people to use the network from the outset. Services on the M2 route (Long Ashton Park & Ride to city centre) will commence in Autumn 2018, with services on the M1 route (Cribbs Causeway to Hengrove) to follow in January 2019.

Bath & North East Somerset Council are undertaking detailed assessments on three options for a clean air charging zone in Bath city centre. Nitrogen dioxide levels exceed required limits in several city centre locations.

The three options vary the range of vehicles which could be charged for entering the zone, from heavy goods vehicles, taxis, coaches and buses, to light goods vans and higher-emission private cars. The level of charge, from £3 to £13, is also the subject of assessment work.

The Council are intending to publish their preferred strategy later in the year, when a round of consultation on the proposals will take place.

The A361 between South Molton and Bideford is to receive improvement work worth £83 million. The work will widen the road from two to three lanes, improving journey reliability and overtaking opportunities across 70% of the route.

Applications for permission in principle (PiP) for minor residential developments (of between 2 and 9 homes) may be submitted to LPAs from today, 1 June 2018, when the Town and Country Planning (Permission in Principle) (Amendment) Order 2017 comes into force.

The amendment Order provides the necessary procedures for implementing the Housing and Planning Act 2016’s provision for making an application for PiP, for sites where between 2 and 9 new houses are proposed. The site does not need to comprise previously developed land, either in whole or in part.

Applications for PiP cannot be made for major, habitats regulations, householder, or Schedule 1 environmental impact assessment (EIA) developments. PiP can be granted for Schedule 2 EIA development, providing that a screening opinion that the proposal is not EIA development has been adopted or made.

Once a PiP has been granted on application, a technical details consent (TDC) relating to the proposed development has to be sought within three years, after which the PiP expires.

As yet, there is no PiP application form, nor a form for applying for a non-material amendment to a PIP (the link in the Order’s Explanatory Note is to a page that does not appear to be maintained). Perhaps more surprisingly, there is not yet an application form for a TDC, notwithstanding that one may already apply for TDC in respect of a site in Part 2 of a council’s brownfield land register.

Further details can be found in our blog discussing what is known so far about PiP on application, and in our Guide to PiP.

On 3 May, two statutory instruments were made by the Government in relation to s14 (‘Restrictions on power to impose planning conditions’) of the Neighbourhood Planning Act 2017.

Commencement regulations provide that s14(1) and (3) will come into force on 1 October 2018, bringing into force parts of s100ZA of the Act, which specifies that planning permission for the development of land may not be granted subject to a pre-commencement condition without the written agreement of the applicant.

The related pre-commencement conditions’ Regulations, made in exercise of the powers conferred by s100ZA(6), provide that the requirement for a written response by the applicant does not apply where the local planning authority (or the Secretary of State) has given notice to the applicant of the intention to grant the permission subject to pre-commencement condition(s) and the applicant does not provide a ‘substantive response’ to the notice before the expiry of a 10 working days period from when the notice was served.

The Regulations do not go as far as expected; in the Government response to the consultation, a number of respondents requested that exceptions should be made to the requirement for applicants to agree certain pre-commencement conditions, notably for matters regarding heritage, nature conservation and environmental protection. Such exemptions were originally proposed when the Neighbourhood Planning Bill was published in 2016, but had disappeared by the time of the first ‘indicative draft’ regulations in December 2016. Accordingly, no such exceptions have been made, and where complications arise and an applicant does not agree to a condition relating to such matters, the authority will refuse permission.

For more details of the potential implications of the new secondary legislation when it comes into force, our blog looks at some procedural matters that may well need to be ironed out between applicants and planning authorities.

On his first day in post, new Housing Secretary James Brokenshire had to answer parliamentary questions on his departmental responsibilities and on affordable homes; reference was made to the Green Belt, council homes, the Hackitt Review and local government finance. He maintained the Party line throughout.

Likewise Parliamentary Under-Secretary of State for Housing, Communities and Local Government Rishi Sunak in a 23 May debate on ‘Planning: Local Communities’ went over the same ground regarding ‘community participation’, setting out ‘the importance that the Government place on communities when it comes to plan making and planning decisions’. He stressed the value of neighbourhood planning, without going into the detail or reference to any research findings. Lichfields has however looked into the types of places that have progressed plans, how they relate to local plans’ slow progress in many areas, and the role they play in housing delivery.

A group submission to MHCLG, signed by parliamentarians, academics and others, was made by Labour MP Siobhain McDonaugh (working alongside think tank Centre for Cities) in response to the since-closed consultation on the revised National Planning Policy Framework (NPPF).

The submission calls for the revised NPPF to include a presumption in favour of residential-led development for sites - whether in the Green Belt or not (but with specified exemptions e.g. for protected areas) – that are within one kilometre of a Transport for London or national rail station that provides access to London’s Zone 1 in less than 45 minutes.

It was reported from the National Planning Summit held in early May that the Government still expects to publish the revised NPPF by the end of July, despite an overwhelming volume of responses to the consultation that closed on 10 May.

Chief Planner Steve Quartermain was reported as saying there had been more than 27,000 responses, although this total includes multiple submissions from campaign groups (including 5,000 duplicate responses seeking better protection for veteran trees).

A recent decision by the European Court of Justice (‘ECJ’) is likely to lead to changes in the way that the Habitats Directive is interpreted for plans and projects.

People over Wind, Peter Sweetman v Coillte Teoranta ruled that Article 6(3) of Council Directive 92/43/EEC ('the Habitats Directive') must be interpreted as meaning that mitigation measures (i.e. measures to reduce or avoid effects) cannot be taken into account at the initial screening stage and should only be assessed within the framework of an Appropriate Assessment (‘AA’). This is contrary to case law established in England and Wales (Hart DC V SSCLG, Luckmore Limited & Barratt Homes Ltd.) that had established that avoidance or reduction measures could be taken into account when considering whether a plan or project would be likely to have a significant effect on a European Site. If the risk of significant effect could be excluded on the basis of objective information at the screening stage, then a full AA (with associated time and consultation requirements) did not need to be undertaken.

The ECJ case relates to grid connection works associated with the Cullenagh wind farm in Co. Laois, Republic of Ireland. Planning permission for the wind farm itself was granted by An Bord Pleanala in June 2014 but did not include the laying of a cable connecting the facility to the electricity grid. Whilst the laying of such a cable would usually be considered ‘exempted development’ not requiring consent, in this case the route of the works had a relationship to two special areas of conservation (‘SAC’) designated under Natura 2000. If the works impacted on the designations, then an AA would be required and the scheme could not be considered exempted development. To determine whether AA was required, the applicant, Coillte, instructed the preparation of a screening pursuant to the requirements of the Habitats Directive. The screening document submitted took account of various ‘protective measures’ to avoid possible impacts in the form of the release of suspended solids into the water bodies that form part of the SACs and that could, if released, negatively impact on the Nore Pearl Mussel (margaritigera durrovensis), which is also protected under the Habitats Directive. Taking the protective measures into account, it was determined that AA was not required in this situation.

This decision was challenged by People over Wind and Peter Sweetman; the High Court determined in March 2017 that the matter should be referred for consideration by the ECJ, noting as it did so that whilst Coillte had suggested that Hart had been ‘incorporated “lock, stock and barrel” into the Irish legal system’, the Court did not see that there had been an ‘unqualified endorsement by the Irish High Court of the reasoning in Hart’.

The ECJ decision concludes that if measures are required to be taken into account at the screening stage to avoid or reduce the harmful effects of a plan or project on the site concerned then ‘it is likely that the site is affected significantly and that, consequently, such an assessment [i.e. an AA] should be carried out’. The decision goes onto state that:

‘Taking account of such measures at the screening stage would be liable to compromise the practical effect of the Habitats Directive in general, and the assessment stage in particular, as the latter stage would be deprived of its purpose and there could be a risk of circumvention of that stage, which constitutes, however, an essential safeguard provided for by the directive.’

Given the implications of the decision on the approach to be taken where a proposed plan or project is subject to Habitats Regulation Assessment, the Planning Inspectorate issued PINS Note 05/2018 on 9 May 2018; it recommends that for both plan making and in casework, screening decisions already made that have taken into account mitigation measures should be re-examined and AA conducted where necessary. The Government may also write to the ECJ to confirm the implications of its decision in the UK.