Category Archives: Planning

 

Government propose granting Planning Inspectorate greater flexibility

 

Government grant Planning Inspectorate greater flexibility in decision making

As part of the Business and Planning Bill 2019-21 the Government announced new measures that will grant the Planning Inspectorate greater flexibility in decision making. Inspectors will be allowed to employ more than one procedure at the same time when determining an appeal, choosing from written representations, hearings and inquiries.

Currently, Section 319A of the Town and Country Planning Act 1990, only allows Planning Inspectors (PINS) to switch between procedures, not to employ more than one at the same time on the same case. The proposed change, which would be permanent, would speed up the decision-making process for planning appeals. The change would apply to all standard planning and enforcement appeals, listed building consent appeals and hazardous substance appeals.

Despite the difficulties, PINS have successfully delivered 3,500 decisions since the start of the lockdown, down 37.5% on decision numbers in normal circumstances. Where possible they have successfully carried out several virtual events including decisions on three National Infrastructure projects, three inquiries and one local plan hearing. A number of cases are programmed to be progressed through July via virtual events, including the South Oxfordshire Local Plan examination.

Barristers from No 5 Chambers provided a useful insight into their experience of virtual committees through their ‘Planning for Recovery’ webinar series*. Whilst they pointed to the positives, such as the move towards the use of electronic documents, they were not conducted without some technical difficulties.

They explained that prior to the virtual event, participants are invited to attend a technical meeting to test the technology and process, organised by the Local Planning Authority. PINS have not dictated how people participate in the virtual hearings and inquiries, appreciating that it is not always possible for teams to gather in the same place. The PINS case officer is ultimately in control of who is audible and visible. Whilst No 5 were supportive of the new format, they did not think virtual committees will or should be the norm on a permanent basis as the lockdown is relaxed, as the technical difficulties are unavoidable and do disrupt the process.

The Business and Planning Bill is expected to be adopted later this month.

*https://www.no5.com/events/planning-for-the-recovery-episode-5/ 

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Build, Build, Build….let’s hope so!

 

Build, build, build blog article featured image

Culminating in Prime Minister Boris Johnson’s announcements on 30 June 2020 to launch the most radical changes to the planning system since the Second World War, we thought it might be helpful to provide a  recap on all that has been happening as we start to ease (spring) out of lockdown….

The key changes we look at below include:

  • Changes to Permitted Development Rights – 24 June 2020
  • Business and Planning Bill – 25 June 2020
  • Planning Reform – 30tJune 2020

Permitted Development Rights

Statutory Instrument 2020 No 632 entitled The Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020 was laid before Parliament on 24 June. Principal provisions become effective on  1 August 2020. Read more: http://www.legislation.gov.uk/uksi/2020/632/made/data.pdf?pk_campaign=newsletter_3351

The House Builder Federation (HBF) summarise the changes to include:

  • “The changes to regulations introduce a new provision to require local planning authorities to take into account the provision of natural light in dwellings created through the use of various permitted development rights for conversion of existing buildings. This was as a response to a number of criticisms of conversions (mostly under Class O of the General Permitted Development Order 2015) creating poor living conditions over which Local Planning Authorities (LPAs) had no control. 
  • The new order also introduces a new permitted development right to allow work for the construction of up to two storeys to create new flats on the topmost residential storey of a building which is an existing, purpose built, detached block of flats. The new right contains certain limitations and conditions as set out in the new Part 20, Class A of the GPDO 2015. In short, the PRD[should this be PDR?] follows the prior approval application to the local planning authority process in a similar way to other permitted development rights for building conversions to residential use.”

Business and Planning Bill

The Rt. Hon. Alok Sharma MP, Business Secretary, laid the Business and Planning Bill before Parliament on 25 June 2020.

Read article here: http://www.legislation.gov.uk/uksi/2020/632/made/data.pdf?pk_campaign=newsletter_3351

This Bill introduced  a host of measures relating to a range of aspects associated with outdoor food and drink consumption (Part 1); Other measures relating to Business (Part 2) and planning measures are set out in Part 3 of the Bill.

Part 1 – Consumption of Food and Drink Outdoors

  • Pavement licences
  • Alcohol licensing

Part 2 – Other measures relating to Business

  • Bounce Back Loan Scheme
  • Goods, passenger and public service vehicles

Part 3 – Planning

  • Construction working hours
  • Extension of certain permissions and consents
  • Procedure for certain planning proceedings
  • Electronic inspection of spatial development strategy

The Bill sets out that the Town and Country Planning Act 1990 has effect as if it were subject to the modifications inserting section 74(B) and (C) relating to construction working hours, setting our measures as to who and how applications to extend working hours can be made, giving Local Authorities 14 days within which to make a decision, otherwise consent is deemed to have been given. Any application is temporary and for a period up to  1 April 2021.

Additional Government Guidance is provided

Announcement here: https://www.gov.uk/government/publications/construction-working-hours-draft-guidance?pk_campaign=newsletter_3351

These provisions come into force 28 days after the Bill has passed.

With regards to extension of planning permissions, the Town and Country Planning Act 1990 is modified at section 93A which states that permissions that expire by  31 December 2020 will be automatically extended to  1 April 2021. Section 93(B) states that in permissions that expired since 23 March 2020  an application for an ‘additional environmental approval’ can be secured (with suitable justification) also extending the permission to the 1 April 2021. The LPA has 28 days in which to make a decision, otherwise approval is deemed to have been given.

These provisions come into force 6 days after the Bill has passed

Further details are provided in relation to amendments to the 2015 Order, including:

  • Class BA – additional temporary use of land during the relevant period
  • Class BA – holding of a market by or on behalf of a local authority
  • Class A – new dwelling houses on detached blocks of flats
  • Amendments to the Town and Country Planning (Control of Advertisements) (England) Regulations 2007
  • Amendments to the Town and Country Planning (Compensation) (England) Regulations 2015

With regards to transitional arrangements, and the passing of the Bill, the HBF explains that: “The Bill completed its progress through the House of Commons using expedited procedures on Monday 2h June. This meant that it received its second reading, committee stage and third reading in consecutive sessions. There was little debate on the planning provisions in the Bill, but MPs were concerned about the apparent lack of public consultation on the extension of working hours and received assurances from the Business Minister that there was no intention to reduce the level of public engagement and consultation on planning applications more generally. 

The Bill now passes to the House of Lords where it will be similarly processed using expedited procedures on Monday 6 July 2020.”

Radical Planning Reform….again…?

Prime Minster Boris Johnson announced on  30 June 2020:  “the most radical reforms to our planning system since the Second World War, making it easier to build better homes where people want to live”

Original article here: https://www.gov.uk/government/news/pm-build-build-build

In his ‘Build, Build, Build’ Speech, he announced the following changes  are to come into effect via changes to the law, in September 2020:

  • More types of commercial premises having total flexibility to be repurposed through reform of the Use Classes Order. A building used for retail, for instance, would be able to be permanently used as a café or office without requiring a planning application and local authority approval. Pubs, libraries, village shops and other types of uses essential to the lifeblood of communities will not be covered by these flexibilities.
  • A wider range of commercial buildings will be allowed to change to residential use without the need for a planning application.
  • Builders will no longer need a normal planning application to demolish and rebuild vacant and redundant residential and commercial buildings if they are rebuilt as homes.
  • Property owners will be able to build additional space above their properties via a fast track approval process, subject to neighbour consultation.”

The proposed changes  look to focus upon repurposing commercial buildings that are vacant to reduce pressure on greenfield land, and at Government land assets to determine how these could be better utilised and accounted with the following further package of measures.

  • “A £12bn affordable homes programme that will support up to 180,000 new affordable homes for ownership and rent over the next 8 years, confirmed today.
  • Included in the affordable homes programme will be a 1,500 unit pilot of ‘First Homes’: houses that will be sold to first time buyers at a 30% discount which will remain in perpetuity, keeping them affordable for generations of families to own.
  • Funds from the £400m Brownfield Land Fund have today been allocated to the West Midlands, Greater Manchester, West Yorkshire, Liverpool City Region, Sheffield City Region, and North of Tyne and Tees Valley to support around 24,000 homes.
  • The Home Builders Fund to help smaller developers access finance for new housing developments will receive additional £450m boost. This is expected to support delivery of around 7,200 new homes.”

He also (re)announced that the Planning Policy Paper will be launched in July 2020, which will ‘plan for comprehensive reform of England’s seven-decade old planning system, to introduce a new approach that works better for our modern economy and society’… and a Local Recovery White Paper later in 2020, looking at sustainable economic recovery.

Interesting times, no doubt to be continued…

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World famous Sir Terry Farrell objected to a proposed extension for one of his first ever designs

 

The 1970s designed and built “The Colonnades” building in Bayswater, West London, was subject of a planning application to extend upwards by 1 and 2 storeys with 11 flats.  Proposed by existing residents, the application attracted 50 letters of objection and 23 letters of support.

Sir Terry Farrell objects to the additional storeys believing that his original design will be adversely affected.  Although not a Statutorily Listed building, the original design and character of the area is afforded some protection sitting in a Conservation Area.

The application was due to go before Westminster Council’s planning sub-committee on the 9th June with a recommendation for approval, however the application was (on the day) withdrawn so committee members were unable to consider and determine it.  It is unclear if the applicants are re-considering there proposals with a view to submitting another application or if any future plans have been put on hold or dropped complete.

Original article: https://www.homesandproperty.co.uk/property-news/architect-sir-terry-farrell-objects-plans-extend-colonnades-bayswater-a138741.html

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Planning Bill (modestly?) aims to speed up economic recovery

 

Planning 2020

The Government yesterday/on 25th June published the “Business and Planning Bill.”  This aims to relax certain planning (alongside other licensing financial and (even) HGV) regulations to help breathe some life into the economy.

Whilst the only permanent planning change proposed is, for many, pretty insignificant and will allow Planning Inspectors to implement “flexible deployment” when considering how best to hear/consider a planning appeal – written representations, hearings or local inquiries – or a mix of all three, there are temporary measures proposed to run more widely.

These include the introduction of a fast-track application process for varying planning conditions and construction site working hours (days, hours, what is required?) and the extension of some planning permission expiration periods applicable to permissions due to expire shortly and those which have expired already.

For permissions which have expired and were subject to an EIA, further environmental approvals will be required.  Finally, the ability to allow an “electronic inspection” of the London Plan will be introduced.

This Bill is legislation playing catch-up to several recent Ministerial pronouncements and it is only at its first stage of passage through the Houses of Parliament.  All stages of the Bill have been scheduled for debate in the House of Commons on 29th June.  Thereafter it is pinged back and forth with the House of Lords (1st, 2nd and 3rd readings) before being given Royal Asset and introduced to us as The Business and Planning Act 2020 (no date given as yet!).

This brief foray for Planning into the Houses of Parliament will not be solitary as the Secretary of State yesterday, when under fire for his determining role in a Westferry planning application, reminded us from the Despatch Box, that he considers a wholescale reform of the planning system is required and that a new Planning Bill will be brought forward “in weeks.”

 

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New Planning Principal Joins Urbanissta Team

 

EllenWe are delighted to welcome Ellen Nicholson, who joins our team as Planning Principal.  Ellen joins us following a two-year spell in Australia, where she worked in Sydney as a Planner in local and state Government, as well as in a planning consultancy.

Ellen comes predominantly from a local Government background having worked for the London Borough of Newham for six years in enforcement, regeneration, and major developments.  Her focus in the Majors Team was on large-scale residential schemes in and around Royal Docks, and some unique applications including the Secret Cinema site in Canning Town.

Ellen says:  “On my return to the UK I was keen to explore options in the private sector, and was thrilled to be offered a job at Urbanissta.  I’m really looking forward to developing my planning knowledge and experience in this role.”

As part of her working holiday, Ellen spent three months in rural Western Australia picking strawberries and pruning vines.  She says it is safe to say she is more suited to office work!  In her spare time, like the rest of the team, Ellen is currently daydreaming of holidays and the pubs reopening.  She continues to keep active with home workouts and walks around the Essex countryside to counteract her dangerous chocolate addiction.

Jo Hanslip, Urbanissta Founder and Director, commented:  “We’re really pleased to welcome Ellen to our growing team.  Her experience in a local authority working on large scale schemes will be really useful as we continue to deliver these projects for our clients.”

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Judicial Review Against Planning Inspectors Granted to Sevenoaks Council

 

Judicial Review Against Planning Inspectors Granted to Sevenoaks Council

Judicial review has been granted to Sevenoaks District Council against the decision of a Planning Inspector to reject its emerging Local Plan over failure of the Council to meet the duty to cooperate.

The Inspector’s final report on the draft plan, issued on 2 March 2020, followed an examination of the Council’s draft Local Plan which had taken place in September and October 2019.  It had asked Sevenoaks Council to withdraw its Local Plan and concluded that the Plan was not legally complaint with regard to the duty to cooperate, because the Council had not satisfactorily worked with neighbouring authorities to accommodate homes it could not plan for as a result of the green belt and other restrictions.

The Inspector, Karen Baker, accepted that the Council had prepared a joint evidence base with other local authorities, including a Strategic Housing Market Assessment (SHMA) with neighbouring Turnbridge Wells Borough Council. However, she stated that the assessment of housing did not include any specific provision for meeting unmet needs of adjoining areas, which the SHMA stipulate need to be considered through the duty to cooperate.

Sevenoaks District Council in their response vehemently refused to withdraw the documents, consequently in April they issued a legal challenge to the Inspector’s decision in the High Court. The Court had issued a notification granting permission for review.

The High Court Judge, Honourable Mr Justice Swift, concluded that “all grounds for the Council’s claim are arguable, hence permission for judicial review was granted, thus clearing the first hurdle of the process”.

The Judge noted more than 800 pages of evidence setting out how the Council had worked with its neighbouring Councils during the production of the plan, whilst these neighbouring Councils supported Sevenoaks Council’s evidence and approach on this matter.

The Council’s Cabinet Member for Development and Conservation, Julia Thornton, noted that “This is great news as it means the High Court believes our position that the Planning Inspectorate may have a case to answer”. She further noted that the Council had followed the relevant guidance when they developed the Plan and the evidence, they had provided to the Planning Inspector justified their position.

The Council insisted that they had no choice but to take a legal route to demonstrate how serious and committed they are to their residents, against what they believe is a fundamental failure by the Planning Inspectorate to take account of the weight of evidence in front of them.

The Council strongly believe that the Inspector had erroneously interpreted key parts of the Local Plan requirements. The Council noted that their Local Plan was the “first in the country” to be assessed under the revised 2018 National Planning Policy Framework.

We will keep you informed of the Court decision concerning this case when the ruling is made.

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The highs & lows of … planning application submissions, the last 6 months

 

Large housing development aerial view in construction on rural countryside site Scotland UK

Planning professionals across the land have been, and still are, submitting planning applications on all natures and scale on behalf of clients across the country.  Whilst this has been occurring, a forensic analysis has been undertaken by EG Radius Data Exchange.  Some interesting findings have emerged. A subtitle of “silver linings in lockdown” invites interesting reading and reflection.

Reporting on a downward trend towards lockdown (23 March), the numbers in April plunged to the lowest since 2016.  However, the report does highlight a few interesting aspects, such as some parts of the country finding themselves with more large scale proposals, and particular sectors such as telecoms maintaining strong returns.

Some overall numbers to cogitate:

  • Before 2020 there was an average of 6,796 planning decisions per month, so far, in 2020 there has been a 12.5% decline
  • Slim pickings for approvals (up 1%) and refusals down (1%)
  • 2% increase in the number of homes approved compared to the same time last year
  • 1,295 telecom mast applications as the nation gears up for 5G
  • A 15.7% fall, year-on-year in applications submitted in the first 4 months of the year

Within the residential sector, negative figures strike (-25% for new applications, -29.2% for decisions) whilst office and commercial activity shoots up (21.2% new applications and 20.5% for decisions).  Not surprisingly private housing is the largest sector for UK planning, accounting for more than half of decisions last year.  Now its contribution has fallen 41.9%.  A slight silver lining for this cloud is that social housing decisions are up 12.9% and new applications also up albeit at 4%.  Bear in mind though, that social housing represents a total of only 3% of applications and decisions.

Across all sectors for applications, whilst offices and commercial applications leap by over 20% with a more modest 4% for social housing, apart from medical and scientific uses which remained static, all other sectors fell from between 8% (community and amenity) with the residential sector hitting -25%.

So, in an era of lockdown, the industry is looking to build new offices?  Does not seem logical when the vast majority are working from home and find it, er … works!  No, it is not the “office” tag which is resurging, rather the “commercial,” and within that lies the answer telecoms.  With the nationwide ambition being for 5G coverage, our nation requires the relatively innocent telecoms mast.  However, given our geography and the fact that 5G radio waves do not travel as far as 4G, the nation needs many of the innocent masts. In fact, they accounted for a third of all commercial and office decisions at the start of this year and more than 41% of all applications.

This may be the case but, according to the research, “Telecom masts have driven office and commercial activity, but only in certain parts of the country,” as evidenced in their graphic …

Approved telecomms applications

Turning to the residential sector, whilst although the number of new applications (-25.5%) and decisions (-29.2%) are down, approvals are on the up with a 7.2% rise to 210,973.  On a similar level, the number of homes in applications submitted at the start of the year was up 13% on 2019 totalling 373,972.

As a Scot myself, it is rare that across most sectors (other than whisky (not whiskey) and tartan) the country spends much time making positive noises.  However, on the rather nerdier planning front, the country has much to shout about, with Scotland leading the way in planning activity at the start of this year.

A couple of graphic snapshots adequately demonstrate this …

Top 10 council approved applications

UK graph

Whilst is would be rather pleasing to end on a positive, there is of the course the negative, planning permissions being refused with the report highlighting that “Greater London is home to eight of the councils most likely to refuse an application.”

Top Active Councils

So, from the above, it clear that planning has not ground to a halt.  It is also clear that some sectors are holding their ground with one, telecoms, pulling the office and commercial sector to the top of the class.  For the residential sector, whilst new applications and decisions are down, approvals are up for the same time last year.  So, with permissions already in place, applications being submitted, certainly on the residential front it is over to the developers to get back out there and get those permissions implemented, or in real terms, build!


A copy of the analysis by EG Radius Data Exchange can be found here.


 

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Rumination 1 – Starting to Plan for Recovery

 

Construction site face mask must be worn sign

As the nation is starting to come back into circulation, we have all been starting to reflect on how we plan for recovery – both professionally and in managing our businesses.

Inevitably the construction industry has been significantly impacted upon by event and will take some time to recover, however it is also true that it is a vital element of the nation’s economic recovery and as such must be at the forefront of leading the charge. In our collective time of reflection, it is obvious that whilst our confinements have been enforced and at times frustrating, there is also the opportunity for space for inspiration, innovation and change in work practices to emerge as better versions of our pre-COVID selves, with working practices and lifestyles which are potentially healthier for us, our spaces and places as well as the wider environment and economy.

With daily press conferences, constant news bulletins and policy formulation coming by the day, it is at times hard to keep up with the way our worlds and working practices will be changed, but we’ve consolidated a few of the key elements for you.

London

On 15 May, the Mayor of London, Sadiq Khan, and Transport for London (TfL) announced plans to transform parts of central London into one of the largest car-free zones in any world capital city. At the start of  the lockdown,  road activity fell by almost 60 per cent and emission of nitrogen dioxide was reduced by circa 50 per cent on some London roads. The Congestion Charge and Ultra Low Emission Zone (ULEZ) was reintroduced on 18 May.

On the same day, affordable housing delivery statistics showed 17,256 affordable homes were started by 31 March 2020.  This exceeded the Mayors 17,000 dwelling target.

Robert Jenrick, Secretary of State (SoS) for Housing, Communities and Local Government published two written ministerial statements on construction and planning on 13 May. This guidance included temporary measures to make the planning system easier to operate.

Construction Hours

Some useful and interesting matters were highlighted by the SoS, principally that:

  • Greater flexibility in working hours on construction sites to enable social distancing requirements, including, varied start/finish times
  • Planning conditions should not prevent the safe operation of construction sites
  • Council’s should act proportionately in responding to suspected breaches of planning control and also act positively to requests for flexibility on site working hours
  • Any temporary changes to construction working hours conditions granted by local planning authorities should not extend beyond 13 May 2021

https://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2020-05-13/HCWS234/

CiL/S106 Guidance Review

  • The Government will introduce amendments to the Community Infrastructure Levy Regulations 2010 to allow charging authorities to defer payments, to temporarily remove the late payment interest mechanisms
  • A discretion to return interest already charged where appropriate for developers that have an annual turnover of less than £45 million will be allowed.

https://www.gov.uk/guidance/coronavirus-covid-19-community-infrastructure-levy-guidance?pk_campaign=newsletter_3039

Sales

Initiatives on  13 May 2020, sought to:

  • Enable Councils and developers to publicise planning applications via social media instead of site posters and leaflets; and
  • Provide a range of initiatives for sales centres, agents and purchasers to follow to comply with social distancing whilst allowing the sales market to continue.

Appeals & Examinations

Inspectorate announcements were issued on 24 March 2020 regarding:

  • Video conferencing
  • Webcast/recording
  • Electronic bundles

PINs is moving towards a more electronic based system in the knowledge that there will be at least six months of restrictions on gathering and as such they have started looking at elements of:

  • Virtual inquiries
  • Statements of common ground
  • Proofs of Evidence
  • Cross Examination procedures, and
  • Roundtable

The new guidance seeks a more frontload evidence base restriction on documents size and extent of appendices. The Rosewell Review (February 2019), highlighted that the Inquiry process delivers about 20,000 dwellings per annum and acknowledged that it takes on average, about 1 year for an appeal to be determined.

The Inspectorate had just started to introduce case management conferences when the COVID crisis hit, the idea of this was to:

  • Speed up process – 16 weeks plus six weeks for a decision
  • Usual element of cross examinations, but also roundtable sessions lead by the Inspector
  • Case management conferences – new to the planning system but is familiar to other aspects of the courts, providing the opportunity to consider the inquiry structure

The planning bar are set to support PINS to trial inquiries by video conference. As we know, planning committees are now continuing in a virtual manner, some with greater success than others.

On 13 May 2020, the Inspectorate also announced that it was to recommence site visits and would be holding more digital case events.  Site visits would only take place if the Inspector could attend safely and the case required a site visit.

With regards to digital events, the guidance is that:

  • “hearings and inquiries for different types of casework (e.g. planning appeals, national infrastructure, local plans etc) [be] held via telephone or video conferencing the Inspector may need to ask questions or hear cross examination for complex issues
  • there is high level of public interest and a public event needs to be held
  • where the legislation governing casework requires, such an event can be held in given circumstances (e.g. national infrastructure and local plan examinations)

We understand that the first fully digital hearing took place on 11 May 2020 as a pilot, and there are a further 20 examinations, hearings and inquiries proposed for May and June 2020. There are also two Local Authorities for who trial Local Plan hearing sessions are being considered.  If successful, this will be rolled out for all examinations.

We have to question whether this is a sign of the new way as the Inspectorate acknowledge that any changes made will need to be sustainable in the longer term…. It will be interesting to see how the process evolves.

https://www.gov.uk/government/news/site-visits-to-recommence-and-more-digital-case-events-planned?pk_campaign=newsletter_3040

RTPI

The RTPI has launched papers to guide the planning profession on its response to the pandemic:

When Local Authorities like St Albans have failed to produce a sound local plan since 1994, it is sometimes hard to think that the planning system can be quickly responsive to need.  With the breadth and scope of positive initiatives that have been implemented in the past couple of months, there are however seemingly reasons to be optimistic.

Whilst there are a lot of strategic initiatives taking place to ensure that the planning systems adapts quickly to the current pandemic, (and is perhaps sufficiently versatile to cope with any future pandemics),  there are a number of issues closer to home that we will also have reflect upon. For example,  will our homes (and gardens) need to be designed to facilitate greater homework and recreating? Have we realised that our gym membership really is a waste of money when we can use our home gym or enjoy a run around our local park for free?  Do we need the daily commute? Do we need to work from offices daily arriving at set hours and leaving at set hours? Can we integrate flexibility into our working lives to ensure productivity/enhance productivity in some instances – whilst also ensuring that the office environment and ‘buzz’ is and can be retained? Will flexible hours be increased to manage rush hour queues? Can our lifestyles and environments improve as we travel by car less and utilise virtual means for connecting? All these such issues will affect how we plan for future new development…

With  us all being used to a new way of interacting, the development sector starting to gear back up again,  and  the sales market being progressed in line with social distancing measures, we have to hope that these seedlings of a return to our new normal develop and grow into green shoots and prosper….strange but interesting time to come….

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COVID-19 Encourages Virtual Planning

 

Quick planning (ish) legal test – do some or all the following mean anything to you – S73, S106, S25, S78?

S73 – develop without compliance with conditions (TCPA – Town & Country Planning Act)

S106 – legal agreement (T&CPA)

S25 – councillors can vote on an application upon which they have expressed a view (Localism Act)

Good (ish) going so far?  What about S78?  Well keen planners out there, S78 (T&CPA) does allow an appeal to be made in relation to an application, but another more recent S78 has far different implications.

S78 of the Coronavirus Act 2020 (1) came into force on the 4th April 2020.  Regulation 5 of said legislation allows local authorities (amongst others) to meet, consider and decide matters away from a single location in person (say the Council Chamber) and effectively convert the time tested tradition of planning applications being determined in the Council chamber,  in person to, wait for it – an online accessible medium.

The single most important benefit for planning is that in this lockdown stay at home environment, planning applications can still be determined by committee and an important end game in the planning system, determination, is not obstructed.

Many planning authorities have been webcasting planning committee meetings prior to the Virus Act, benefits amongst others being:

  • Interested parties including members of the public can observe committee dealings without physical attendance, particularly when committee times vary (2pm, 6pm, 7pm) and may not be conducive to travelling to X or Y Town Hall and having to actually be there.
  • Committee Member’s behaviour can be observed prior to the determination of an applicants’ own application. Spot the silent majority/minority, Cllr A who adores Policy Res1.2 so much that all applications are tied to it, or Cllr B who always seems to reiterate/repeat what Cllr C says.
  • Officer’s behaviour can also be observed. From the methodical, steady presenting officer to the officer who politely reminds the Chair that precedent has been set elsewhere, right through to an officer who was observed being unable weather the storm which many Cllrs brought to home on numerous applications (not helped by a weak Chair).
  • Agent’s behaviour can be observed and critiqued

Now the key difference is that all planning committees are being dragged into reality and being forced to conduct planning business in public over the web in real time.  I have observed a Hertfordshire planning authority conduct their affairs extremely well (and this was their first online attempt).  The Chair assumed his normal controlling authority, the presenting, questioning, determining format was scrupulously deployed and third parties were very fairly dealt with and in one case questioned by Members.

I have, however, also observed a Kent planning authority where webcasting has been in operation way before the Virus legislation came along and where Members who were unable to come to a view on a particular aspect of an application decided to down (online) tools, halt the meeting and retire to another (non-onlined) room without officers “to discuss” and then return with an answer.

In the future, with online working increasing other staples of Council meetings should/could be shelved.  What about the 60-odd, 100 sometimes +300 page paper agendas which are churned out of the Council’s print section a week in advance of meetings, to be followed by 10, 20, 30+ paper addendum in the run up to the meetings?  Hardly sustainable, especially when said Councillors may extol the virtues of their own Local Plan policy Sus2.1 which seeks to ensure developments install Electric Vehicle charging points.

One note of caution which I learned (the hard way) prior to online committee meetings being mandatory, remember, if you are acting on behalf of the applicant and are speaking before committee, you may be being recorded and webcast.  Having been asked at the last minute to substitute a colleague who was ill, I turned up to a planning committee trying to assimilate the bare essentials (and more) before the coveted 3 minute speaking slot.  3 minutes done and dusted, relatively easy ride from Member’s questions, planning permission granted, leave Chamber at 9.30, pm, home just before midnight – job done!

Next morning (9.30ish) the project’s architect called to congratulate on getting permission.  I was somewhat perplexed as I had only informed the client the night before.  This particularly keen and assiduous relatively junior architect had viewed the committee proceedings online and seen and heard my inclusion wanted or not!  One other slightly irritating feature of the online webcasting is that anyone (client, colleague, boss, junior team members, even family and you yourself (!!), can observe and mark out of ten your efforts!

Overall, this is a welcome temporary measure which should be made permanent, post virus conditions.  Indeed, many local authorities have already introduced successful webcam recording conditions.  Having spoken to officers and Members any initial hiccups have been swiftly remedied.  One officer (and indeed mine with two authorities) is that fewer items are being put on the agenda as many applications (with one authority) seemed to be taking longer to determine.  No fault of Members or officers just time-lag, repetition being needed, some contributor’s (Members, speakers, applicant, etc) online presence not there when required. From a practical and procedural perspective one officer stated that agenda setting and preparation for the committee meeting was “smarter and more effective.”  For that authority, a result has been the faithful monthly committee meetings now occurring weekly.

A great way in which to prepare for committee meetings noting officer and Member traits in the expectation that when it is your turn to be under the virtual microscope you can also “perform” efficiently, calmly and authoritatively – all resulting in – “planning permission granted” !!!

 

 

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Planning Inspector Provides Detailed Feedback on St Albans’ Draft Local Plan

 

St Albans

Planning Inspectors have now provided detailed feedback to St Albans City and District Council following concerns expressed earlier in the year over its draft Local Plan. The letter is overall highly critical of Council’s approach and very largely seems to accept many of the objections put forward during the first few days of the Examination in Public in January.

The planning inspector had earlier in January 2020 written to the Council having serious concerns in terms of legal compliance and soundness of the draft local plan, following initial hearing sessions earlier this year. Consequently, the inspectors in their letter dated 14th of April 2020 cited six areas of main concern. The key issue that the inspectors felt was the Council failing to ‘engage constructively and actively’ with the neighbouring local authorities on Radlett Strategic Rail Freight Interchange proposal in drawing up the draft Local Plan that was submitted in March 2019.

As we are aware that Local Plans set out a blueprint for development in an area over a specific period, and concerning St Albans City and District Council’s emerging Local Plan, the planning period is for 2020 – 2036. The draft Local Plan dealt with issues such as housing, and jobs, as well as the kind of infrastructure that is required like schools and medical facilities.

The then Secretary of State for Communities and Local Government now referred to as (Housing, Communities and Local Government) Local) granted planning permission for a Strategic rail freight terminal at a site near Park Street to the South of St Albans. The site is the location of one of the areas identified for housing in the St Albans draft Local Plan.

The Inspectors in their feedback letter noted what they considered to be the Duty to Cooperate under Section 33A and 33A(4) of the Planning and Compulsory Purchase Act 2004.“in order to safeguard the Strategic Rail Freight Interchange (Planning) permission”. The Inspectors had expected the Council to have done more in seeking that the neighbouring local authorities accommodate either the Strategic Rail Freight Interchange, or the housing proposed for the site in line with Section in line with Paragraph 25 and 26 of the NPPF.

The Duty to Cooperate (DtC) under Paragraph 25 and 26 of the NPPF, requires the Council to engage constructively, actively and on an on-going basis in relation to the preparation of Local Plan documents so far as relating to a strategic matter (in order to maximise the effectiveness of plan preparation). In particular, joint working should help to determine where additional infrastructure is necessary, and whether development needs that cannot be met wholly within a particular plan area could be met elsewhere.

The letter noted that, although a large site in the district (the Radlett site) had secured planning permission for a Strategic Rail Freight Interchange , but it is proposed for housing in the draft local plan as Park Street Garden Village Broad Location and not identified as a strategic matter by the Council, thus, not included in the draft Local Plan. Ultimately the proposed development (Park Street Garden Village) has the effect of precluding the permission for the Strategic Rail Freight Interchange. As a result, the Council considers that it did not need to cooperate in relation to this matter, since the policy on the Strategic Rail Freight Interchange ceased to be a strategic site promoted under the plan, it was no longer required to engage in the Duty to Cooperate discussions.

The argument by the Council that the Duty to Cooperate applies only to proposals in the plan, since by their very nature, approaches to unmet needs will not be included in the plan (since there is no provision to address them there) was found to be unreasonable by the Inspectors. They found the use of the land in Radlett site, whether as a Strategic Rail Freight Interchange site or a housing allocation to be a strategic matter which the Council should have been engaging and cooperating with neighbouring authorities about.

There is also the concern of the inspectors that the draft Local Plan had not complied with the Council’s Statement of Community Involvement which fails to meet objectively assessed needs and that the absence of key pieces of supporting evidence for the plan, such as demonstrating that other nearby authorities have been approached in terms of the possibilities of accommodating either the Strategic Rail Freight Interchange, or the housing that is proposed on site.

The Inspectors submitted that whilst the Council’s decision not to pursue the allocation of the Strategic Rail Freight Interchange in the plan does not in itself indicate a failure to comply with the Duty to Cooperate, however, the Council had not engaged or cooperated with other bodies (including other LPAs) with regard to this issue. This includes in relation to the reasons as to why it had not considered to include the Strategic Rail Freight Interchange as an allocation in the plan, or why housing is now proposed there. Consequently, they concluded that the effectiveness of the Council’s plan preparation has not been maximised in this regard.

The Council’s approach to the Green Belt Studies was another area of concern to the Inspectors as the Council had received warnings in 2017 and 2018 that, it would face Central Government intervention if it failed to deliver its Local Plan in a timely manner. Hence, the Green Belt Studies was rapidly completed. The Plan proposes substantial Green Belt boundary alterations to enable land to come forward for development.

Paragraph 137 of the NPPF requires that before concluding that exceptional circumstances exist to justify changes to Green Belt boundaries, the strategic planning authority should be able to demonstrate that it has examined fully all other reasonable options for meeting its identified need for development. The Inspectors noted that the Council had not demonstrated that their approach to the Green Belt had been informed by discussions with neighbouring authorities on whether they could accommodate some of the identified need for development, as demonstrated through a Statement of Common Ground  (SoCG) in accordance with Paragraph 137(c) of the NPPF.

The Inspectors express doubt as to whether adequate studies have been undertaken and evidence produced to justify that exceptional circumstances exist to alter the Green Belt boundaries. In particular Paragraph 58 of their letter states that “if the examination is to continue, a new Green Belt Review would need to be undertaken……” something for which we have strongly pressed. They submitted that, whilst their concerns are substantial, they will not make an absolute final decision as to whether or not the Duty to Cooperate has been met until the Council has had the chance to respond to their letter.

Reference was made to the Council’s Statement of Community Involvement (SCI) which had set up reasonable expectation that the Council would undertake a Preferred Options Consultation on the Plan prior to its submission. However, this did not take place, rather the Plan had commenced from Issues and Options in January/February of 2018 with no Preferred Option Stage. Thus, the Plan was not prepared in compliance with the SCI and there has been a breach of Section 19(3) of the Planning and Compulsory Purchase Act 2004.

The Inspectors submitted that the plan had not been prepared in accordance with the Council’s Statement of Community Involvement (SCI), that it “fails to meet objectively assessed needs and that key pieces of supporting evidence are absent.” In other words, they suggest the Council consultation process was flawed.

On the question of whether the Plan meets the required tests for soundness, the Inspector’s question the wisdom of Council relying on a number of major strategic sites to meet their housing need whilst arbitrarily rejecting any site which would yield fewer than 500 dwellings. The Inspectors express concerns about the narrow focus that has been placed on relying only on the larger sites, which has effectively “ruled out an important potential source of housing.”

The letter also indicates that the Inspectors do not accept that Council has given first consideration to Previously Developed Land (i.e. “Brownfield sites”) which they are required to do before contemplating the release of Green Belt.

In relation to the issues set out above, the Inspectors stated that they have substantial soundness concerns with elements of the plan and have found legal compliance issues with the consultation process.

The Inspectors concluded by informing the Council that they “will not reach an absolute or final position until St Albans City and District Council have the chance to consider and respond to the letter.” No timescale for this is specified. They state however that “we consider it a very strong likelihood that there will be no other option other than that the plan be withdrawn from examination or that we write a final report recommending the plan’s non adoption…”

St Albans City District Council Councillor, Jamie Day, a portfolio holder for Planning in the Council stated the importance of the need to progress the Local Plan in order to manage the District’s growth in a sustainable and positive way. He expressed that the Council is keen to deliver the much-needed housing in sustainable locations but, stated that their efforts to do so are curtailed somewhat by the complexities involved.

Concerning the Freight Interchange, the Councillor noted that it is in a unique position of having a Government-permitted strategic rail freight terminal site actively promoted by landowner for alternative housing use. He noted that Council have over recent years made effort with the neighbouring Local Councils and the County Council to demonstrate its commitment to cooperating with them, hence, found it disappointing for the Inspectors to call out the Council on this point.

The Councillor stated that the council would respond to the Inspector’s letter in order to address the concerns raised and that they had already engaged with the Local Government Association to review the way that their Planning Department works and to benchmark it against other local authorities so as to strengthen it for the future. He however noted that the review has been unavoidably delayed by the ongoing Coronavirus Control measures put in place by the Central Government.

Councillor Richard Curthoys, Conservative Group spokesperson on the Planning Policy Committee disclosed the Council displeasure with the Inspectors Letter by stating that: “many of the iterations of the duty to cooperate (DtC) meetings between 2017 and 2019 had not been recognised by the Inspectors”.

Furthermore, the Councillor referred to the Inspectors statement that: “a lack of objections to the plan is not an indication that the duty to cooperate has been complied with”, to be particularly confusing, as the plan was discussed and presented to all statutory consultees who were then asked both verbally and in writing if they had any objections and whether the DtC had been complied with. He also considered the Inspectors conclusions on the Duty to cooperate and the Strategic Rail Freight Interchange site to be completely baffling, giving the topographical nature of the  requirements of this kind of site.

Councillor Malachy Pakenham, Labour Group spokeperson said: “The Rail Freight Interchange Site (Radlett site) was always going to be difficult to incorporate into the Local Plan as Park Street Garden Village”. 

The implication of the Planning Inspector’s letter in my view is that, St Albans City and District Council options are limited,  the withdrawal of the draft Plan  seems the best option and  the planning process should start all over again. However, the Council would urgently need to look at all its options to consider the best way forward.

In progressing the Local Plan, there is the need for the Council to grasp the Central Government current position on intervention in complex situations such as those in St Albans City and District Council. There is also the need for the Council to consider the forthcoming Housing White Paper of the Government and lower demographic growth projections than previously.

The full text of the Planning Inspectors letter is available on St Albans City District Council Website below:

https://www.stalbans.gov.uk/sites/default/files/attachments/ED40%20%20Inspectors%20Post%20Hearings%20Letter%2014.4.20.pdf

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