Stuart Andrews, Eversheds LLPApril 2013

The national planning frameworkPractical planning

Introduction

Stuart AndrewsHead of PlanningPartner for Eversheds LLP

 

Direct dial: 0845 497 1272Mobile: 07768 070453www.eversheds.com

Content

The national planning policy framework- the local plan- planning by appeal- some unforeseen consequences

Nationally significant infrastructure projects- meeting the requirements- managing risk- some unforeseen issues

Legal update- town and village greens and other cases- community infrastructure levy- legal challenges

PART ONEThe national planning framework

“… piecemeal reform of the planning system is simply not an adequate response. Only a radical reboot is going to deliver the planning system that we need to succeed in the years to come.”

(Open Source Planning)

The NPPFThe role of “national policy”

Plan making - Section 19(2)(a) Planning and Compulsory Purchase Act 2004 - regard is to be had to national policy- Section 20(5)(a) 2004 Act – need for soundness (and so

consistency with national policy - NPPF para.182)

Development control- Section 38(6) Town and Country Planning Act 1990 is retained -

the development plan retains statutory force - National policy is an “other material consideration” (TCPA section

70(2))

What do you think will be the best way to engage with the planning system for the foreseeable future?

a) active engagement in the plan making process?

b) through community/parish groups in the preparation of

Neighbourhood Plans?

c) at appeal?

d) challenges through the Courts?

e) sitting it out and waiting for it all to change again?

f) don’t know.

The presumption in favour of sustainable development

• Significant weight should be placed on the need to support economic growth through the planning system (para 19)

• Economic, social and environmental goals should be sought jointly and simultaneously (para 8)

• Investment in business should not be overburdened by the combined requirements of planning policy expectations (para 21).

Promoting local plans

They should set out strategic priorities by:

- plan positively for 15 years and keep plans up to date based on co-operation with neighbouring authorities;

- they should use a proportionate evidence base with up to date and relevant evidence about economic, social and environmental characteristics; and

- ensure their assessments of housing and employment are fully integrated, taking into account market and economic evidence (para. 158).

Will Central Government pressure force intransient and politically motivated local authorities to robustly plan for housing and economic growth in their area, even if the need for such development is generated elsewhere?

YES or NO

Promoting local plans

• Duty to co-operate on policy issues crossing boundaries, particularly strategic priorities.

• Public bodies have a duty to approve development that accord with the development plan without delay.

• Public bodies have a duty to approve development where the development plan is absent, silent or out-of-date, unless adverse impacts significantly and demonstrably outweigh the benefits

Is the Duty to Co-operate doomed to failure and will it mean that many Local Plan’s will fail to be found sound because of differing political and strategic objects between urban and rural authorities?

YES or NO

Recent developments

• West Berkshire - Report on the Examination into the Core Strategy dated 3 July 2012

• Rushcliffe - Examination into the Soundness of the Core Strategy Development Plan Document Inspector’s letter dated 27 November 2012

• Tetbury – Appeal by Fay & Son Ltd at Highfield Farm, Tetbury, Gloucestershire dated 13 February 2013 (APP/F1610/A/11/2165778)

• Cheshire - Fox Strategic Land and Property Limited v SoSCLG and Cheshire East Council [2012] EWHC 444 (Admin)

How do you think the system could be improved?

a) restoring a system of Regional Planning?

b) go back to sub-regional planning/Structure Plans?

c) the publication of Central Government targets?

d) further reforms to simplify the system?

e) directives from Government making clear the risks of non-

compliance?

f) set some key national constraints and deregulate everything

else to local planning?

PART TWONationally significant infrastructure projects

• Reservoirs, water transfer (10mcm or 100mcm/year) (not yet in force);• Any sort of electricity generation (50MW onshore/100MW offshore);• Electricity transmission lines (132kV);• Gas storage, LNG, gas reception (43mcm or 4.5mcm/day);• Pipelines (40km (gas), 10 miles (other));• Roads (various);• Railways (when expanding from the existing railway corridor);• Harbours (5m tonnes);• Airports (10m passengers);• Rail freight (60ha);• Waste water treatment (500,000 people);• Hazardous waste (30,000 tonnes/100,000 tonnes); and• Transfer or storage of waste water (350,000m3).

NSIPsPlanning Act 2008

• The new types of developments that could be considered under the NSIP system include:

- Offices and research and development facilities;- Manufacturing and processing proposals- Warehousing, storage and distribution; - Conference and exhibition centres; - Leisure, tourism and sports and recreation,

including sports stadia; - Extractive industries (mining and quarrying) including

proposals for deep mined coal and onshore oil and gas extraction; and

- Mixed-use development including, for example, mixed-use business parks.

NSIPsThe growth and infrastructure bill

• National policy statements (“NPSs”) establish the case for NSIP development.

• NPSs set out the national need for infrastructure development and set the policy framework for DCO decisions.

• Promoters must ensure that proposals are properly prepared and consulted on before they submit an application.

• Decisions will be based primarily on the NPS, through a streamlined examination process.

• Questioning at hearings will be led by Inspectors rather than being adversarial.

NSIPsThe process

• Drift - Daventry International Rail Freight Interchange: notification of decision not to accept application dated 28 November 2012

• HS2 bill - Decision of the High Court in R (on the application of HS2 Action Alliance Ltd and others) -v- Secretary of State for Transport & High Speed Two Ltd [2013] EWHC 481 (Admin).

• Preeshall – Decision of the Secretary of State relating to the refusal of the proposed Saltfield Underground Gas Storage Facility in Lancashire (File Ref EN030001) dated 9 April 2013

• Milton Keynes - Decision of the High Court in R (RWE NPower Renewables Ltd) v Milton Keynes Council [2013] EWHC (Admin)

NSIPsRecent developments

PART THREELegal update

• Town and village greens Newhaven Port & Properties Limited v East Sussex County Council [2012] EWHC 647 (Admin)

• Section 106 agreementsWestminster City Council –v- Secretary of State for Communities & Local Government [2013] EWHC 690 (Admin)

• EvidenceWainhomes (South West) Holdings Ltd v Secretary of State for Communities & Local Government [2013] EWHC 597 (Admin)

Legal update

• Extending the date from 2014 to 2015 for the pooling of s.106 • Allowing payment of CIL in kind with infrastructure• Greater flexibility over payment, particularly for large schemes• Allowing site preparation before CIL is triggered• Scrapping the occupancy test so that all existing floorspace

is offset• Simplifying and extending affordable housing relief • Amending the exceptional circumstances relief• Reinforcing the evidence tests for CIL setting and amending

rules relating to Regulation 123 infrastructure lists to provide more clarity and commitment to delivery.

Legal updateConsultation on community infrastructure levy

• Amendments to the Civil Procedure Rules, governing cases conducted in England and Wales, bring into force a new cost-capping regime for litigants in environmental-related judicial review claims.

• The rules, introduced on 1 April, cap the costs recoverable by a defendant from a claimant in such cases at a maximum of £5,000 where a claimant is an individual, and at £10,000 in any other circumstances.

Legal updateLegal challenges

"I mean, bluntly, there comes a question in life - do you believe planning works, that clever people sitting in a room can plan how people's communities should develop? Or do you believe it can't work?

“I believe it can't work, David Cameron believes it can't, Nick Clegg believes it can't. Chaotic therefore in our vocabulary is a good thing.”

ConclusionNicholas Boles, Planning Minister

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