Two Energy Sticks in The Countryside – Guess Which one Has a Presumption Against?

A question to our Secretaries of State.

Imagine two energy sticks on the countryside.  Both around 15m high with the same visual impact, the same noise impact, the same traffic impact to service.

One produces carbon free energy, the other pumps out CO2.

One has a presumption against, no risk of costs if refused and almost certain to lose on appeal, likely to be called in by the SoS to make sure this happens.

The other has a presumption in favour of development, almost certain costs if refused, and is very likely to be called in by the SoS to make sure this happens.

So what type of energy stick has a presumption in favour and what a presumption against?

The national policy on noise and visual impact on both energy sticks is the same.  National policy in the NPPF favours and promotes low carbon energy in numerous places – so why then does a presumption against decision regime apply to the low carbon stick and a presumption in favour regime apply to the carbon belching stick?

Saying its in the manifesto is no excuse – your not proposing any changes to planning law or national planning policy nor did you promise this in the manifesto.

We may no longer have a coalition but that doesn’t make planning policy contradictions on energy any less preposterously contradictory for a moment.

Rebuild this Pub Exactly NOW

Love this enforcement notice from Westminster relating to unauthorized demolition of a pub without prior notification of method of demolition.

Rebuild The Carlton Tavern Public House, to match in facsimile the building as it stood immediately prior to its demolition on 8th April 2015, in conformity with the detailed architectural descriptions as to building materials, plan form, exterior and interior attached to this Notice, and in conformity with the photographs attached for the purposes of Illustration.

Those details from a planning application submitted by the owner.  Which i’m sad to say are pretty crude and if followed to the letter would result in a messy building with poor detailing.  The EH assessment doesn’t help much on these details.  They could use completely different sized bricks and still comply with the notice for example.

Similar ‘rebuild in facsimile notices have sometimes been served in Dublin with reference to unauthorized demolition of Georgian buildings.  I havent seen any assessment of the quality of what results.

 

Four Legal Opinions in One Meeting – Fracking Hell in Lancs

Any case officers nightmare in the Lancs fracking case.  You get legal advice – and both sides opponents and supporters get legal advice in the middle of the meeting, including from from a residents who happens to be a barrister.  Just give up and let judges decide all fracking planning applications you might as well.

This is FOEs advice from Richard Harwood QC

I am no friend of fracking but this advice seems to be clutching at absolute straws. ‘Predicted sky glow is predicted to marginally exceed permitted standards’ come off it.

The trade body sought their own advice and asked for a short delay to finish it – the cllrs rejected this and refused the scheme.

The legal advice obtained by the council was secret but from what was said almost certainly suggested that costs would be forthcoming on a refusal.

I should note that Richard Harwood QC most definitely did not state that costs would be avoided.  Though not ba fan of fracking FOEs conduct in this whole affair is disgraceful.  They confused matters with legal advice commissioned with the aim solely of confusingh because of thweir strategic objection to Fracking in principle not regarding what was the key issue in this case and its materiality – noise levels.  The fact that noise occurs 24hrs a day doesn’t make something a refusal reason by itself.  After all substations hum 24hrs a day.

If costs are awarded against Lancs send the  bill to FOE.

Tactically it would have been better if the Lancs advice was made public and their barrister had been at the meeting.

The trade bodies legal advice is telling

“Ashley Bowes [barrister] does not provide reasons why a refusal and departure from the officer’s recommendation would be reasonable. While he asserts that refusal could occur on landscape and/or noise grounds, he does not refer to evidence to justify this position.

“Noise is a highly technical issue where there is little scope for judgment. It is not open to the Council to say it does not accept the evidence of Arup or Jacobs in respect of noise, unless robust evidence can be provided to the contrary. In this case, Jacobs, the Council’s own noise consultant, has concluded noise impacts are acceptable and both Arup and Jacobs have responded to the contentions raised by MAS.Because noise is a technical matter with so little scope for interpretation it is one of the more common matters which give rise to an award of costs against a Council.

Or even better submit all legal opinions to a retired judge if they were conducting a JR on the issue of costs and publish the results, any party that disagreed should be required to fund Lancs or the applicants costs as a bond or be ruled out from being a party on JR.

This case will feature in memberr training in the future as case number one on how not to make decisions.

Windy Rhetoric and Legal Reaity – Inspectors Will Still Have Legal Scope to Approve Windfarms

The windy rhetoric

Planning Resource

Speaking in the House of Commons yesterday, Rudd set out details of the government’s plan to bring an early end to a key subsidy for developers of onshore wind farms.

Rudd was quizzed during the debate on government plans to give communities the “final say” on onshore wind farms by Tory MP for North West Hampshire Kit Malthouse. He asked: “Can she reassure those worried communities that that means that they cannot now be overruled by the Planning Inspectorate?”

Rudd responded: “Yes, I can.”

Rudd was also pressed on the issue by Peter Bone, Conservative MP for Wellingborough. He asked: “Can my right hon. Friend confirm that if the Borough Council of Wellingborough turns down a planning application for a wind farm, its decision cannot be overturned by the Planning Inspectorate?”

Rudd responded: “Yes, I can confirm that.”

In a written statement last week, communities secretary Greg Clark set out new considerations to be applied to proposed wind energy developments.

The statement said that local planning authorities should only grant permission if:

– the development site is in an area identified as suitable for wind energy development in a local or neighbourhood plan; and

– following consultation, it can be demonstrated that the planning impacts identified by affected local communities have been fully addressed and therefore the proposal has their backing.

The Conservative Party’s manifesto pledge to give communities the “final say” over onshore wind applications had left experts puzzled over how the change would be enacted.

Experts told Planning last month that scrapping the right to appeal would be undemocratic and would be likely to lead to developers complaining of discrimination, first to UK courts and then to Europe.

The legal reality (from PAS notes)

Since the abolition of Planning General Principles in March of this year (which made claer that public opinion alone was not material) the extent to which consultation reponses are to be taken into account is a matter of Planning Judgement to be governed by the caselaw on planning judgement.

The correct interpretation of national planning policy is a matter for the courts: Tesco Stores Ltd v Dundee City Council [2012] UKSC 13. The Supreme Court nonetheless made clear that there was extensive scope for the application of planning judgement provided that the decision-maker correctly informed themselves in respect of the policy. Paragraphs 17-23 are required reading for any case officer or planning policy officer. 5.

In Hunston, the Court of Appeal confirmed at [4] that Tesco v Dundee applies to the interpretation of the NPPF. It is now clear that the approach also applies to Planning Practice Guidance (PPG): see Lark Energy Ltd v SSCLG [2014] EWHC 2006 (Admin), [70].

As Greg Clarke’s written statement says

local planning authorities should only grant planning permission if:

  • the development site is in an area identified as suitable for wind energy development in a Local or Neighbourhood Plan; and
  • following consultation, it can be demonstrated that the planning impacts identified by affected local communities have been fully addressed and therefore the proposal has their backing.

Whether a proposal has the backing of the affected local community is a planning judgement for the local planning authority.

Unless there is a change in the law to revoke the caselaw or remove the right of appeal this is entirely a matter of planning judgement for inspectors.  They are entirely within their rights, and indeed are duty bound their independent professionalism and parliamentary approved scope to approve a scheme if they feel that the evidence does not back up some local objections and every reasonable effort has been made to mitigate impacts and if the planning balence is in favour of the scheme.  The discretion of inspectors cannot be fettered without a change in the law and unless we what to go down Erdogan (Turkish President) style bullying of planning professionals to come to the dictat result irrespective of policy or evidence then inspectors can and should exercise their discretion.  If they inspectors threatened with the sack for applying their brains then you might as well introduce an act of parliament to abolish the inspectorate and draw lots, or throw darts at the wall, have decisions determined by what side of the bed ministers got out of or have an auction where permissions get granted to whoever offers the biggest bribe or shares a hottub with the minister.  After all that is how planning is decided in most of the developing world and what wonderful results its produces.  

The courts have held a very dim view of misleading speeches that attempt to change the law without a proper vote or legislation.  Come Clean Mrs Rudd if you want Erdogan like powers put it in legislation and let their be a vote.

Clarke the Local Plan Inspector- Why Greg Clarkes Hands may be Tied on the Maldon & N Somerset Local Plan Dispute

I had several emails on this during a period when I was coordinating three masterplanning teams in three countries on a scheme for over 250,000 homes to be ready in two months – so sorry.  But some thoughts.

The inspectors response to Maldon’s ‘its not a big deal’ letter is clear.   The policy is out of date and inadequate and delaying the plan would to deal with housing matters properly would not lead to appeal led development as planning permission on quickly released sites has now been granted.  It ios telling how slow release of sites in Maldon for travelers has been.

I am particularly scathing about Maldon attempting to put words in Keiths Holand’s Mouth – he did not say at the pre-visit it wasn’t a major issue- rather a plan without traveler provision would only be found sound where it was not a major issue.  In Maldon and all of Essex ot always has been a major issue.

Malson having written to the SOS to ask him to use his rarely used section 21 of the 2004 Act powers (only used once before in N Somerset and still not decided on).

Both the Maldon and N Somerset cases are likely to end in the courts and naturally the DCLG will be reluctant to intervene too often in legally protracted cases where the only choice under the act is to adopt or reject.

In both the N Somerset and Maldon cases the SoS will have to decide on some key issues fudged by himself, Boles and Lewis

-The Boles Doctrine on whether Green Belt allows you to treat it as a binding constraint

-The Liverpool or Sedgefield method (which I hope in N Somerset’s cases goes the Liverpool way as this was the case in S Glocs)

-On the equalities issues on dealing with travellers provision years after housing for teh settled community.

Sloughing off to travelers DPDs is surely untenable these days in light of the ECHR case Moore & Anor v Secretary of State for Communities and Local Government & Ors [2015] EWHC 44 (Admin) of 21 January 2015 – let alone the Equalities Act.  But we will see.  I suspect Greg Clarke might just pass this hurdle if he stresses that the G&T DPD should be determined at the first possible opportunity and this should not set a precedent for postponing deciosions on G&T cases – if he doesnt hes latying himself wide open to JR and it would set a terrible precedent.

On the North Somerset issue the Council had agreed to up the housing numbers, implying a Green Belt Review – but then ‘undecided’ in the light of the pre-election Brandon Lewis guidance changes treating Green Belt as a ‘constraint’. Im surprised the SoS decided to take this one as it means making a local decision about GB boundaries which they are loathe to do.  Whats worse is what cant be provided in N Somerset must go to South Gloucestershire.

 

 

 

 

 

Is their any Doubt Now that Councils Can Neither Obejctively Assess or Measure Housing Need

The case is mounting

Richard Garlick in Planning

In our last issue (Planning, 5 June, p14), we reported research from consultancy Savills, which had found that 43 per cent of councils claiming a five-year land supply do not in fact have one.

In this edition, we examine new data from consultancy Indigo Planning (see News Analysis, p7), which has focused specifically on authorities in the South East. It found that, on average, planning authorities in the region overestimate the amount of housing land supply that they hold by a third of a year. Half of the authorities in the region do not have a five-year supply once the required “buffer” of additional provision is included, and past shortfalls factored in, it concluded.

The vast majority of local plans are held up through underestimating need. Now their is evidence – subject of course to argument over the subjectivities of NPPF terms – that around half overestimate their supply.

Im a great supporter of localism but their can be no doubt that when it comes to ‘objective’ assessment trusting LPAS on this is like trusting foxes to guard a henhouse.  As the single biggest blocker and complicator to UK planning it must be handed to truly independent and objective bodies.

New Windfarm Policy is Dangerous Dogs Act Standard of Bad Drafting

Here

Vague, and bound to increase JR, lets take a look

Subject to the transitional provision set out below, these considerations will take effect from 18 June and should be taken into account in planning decisions. I am also making a limited number of consequential changes to planning guidance. When determining planning applications for wind energy development involving one or more wind turbines, local planning authorities should only grant planning permission if:

· the development site is in an area identified as suitable for wind energy development in a Local or Neighbourhood Plan; and

· following consultation, it can be demonstrated that the planning impacts identified by affected local communities have been fully addressed and therefore the proposal has their backing.

In applying these new considerations, suitable areas for wind energy development will need to have been allocated clearly in a Local or Neighbourhood Plan. Maps showing the wind resource as favourable to wind turbines, or similar, will not be sufficient. Whether a proposal has the backing of the affected local community is a planning judgement for the local planning authority.

Where a valid planning application for a wind energy development has already been submitted to a local planning authority and the development plan does not identify suitable sites, the following transitional provision applies. In such instances, local planning authorities can find the proposal acceptable if, following consultation, they are satisfied it has addressed the planning impacts identified by affected local communities and therefore has their backing.

The first clause only applies in those cases where a local plan identifies suitable areas and it is outside them – rare.  In almost all such cases criteria based policies still apply, so what happens then is the plan now out of date?

What happens if an application is controversial ecaue of impacts, such as wind shear noise, that following careful study and the judgement of an inspector is found to be invalid, but as always happens many of the public simply dont accept the sceince.  If a consideration is immaterial in planning law can it be taken into account?  Is irrational fears a material planning consideration – the caselaw says yes – however in the past the now sadly abolished ‘Planning system general principles’ would give short shrift to objections relating to immaterial issues.

The dogs act drafting is in ‘· following consultation, it can be demonstrated that the planning impacts identified by affected local communities have been fully addressed and therefore the proposal has their backing.

Can be demonstrated is not the same as is demonstrated, what if  planning officers or an inspector considers the issues fully addressed but objectors still object?  It is not a matter of planning judgement to weigh objections on a scale.  What if an LPA says to an inspector forget the facts it is our opinion and that of the local community that matters.  The problem is the lack of any kind of structure to weigh and balance material considerations now that the opposite of NPPF para. 14 seems to apply only in the case of windfarms – uintenable.  Take Chris Grayings commons statement and substitute housing for windfarms and you see the way the wind is blowing.

 

What is Brandon Lewis’ Priority – Quicker, Simpler Permissions or More Housing?

FT 10th June

In a nod to the Conservative party’s drive to liberalise the planning regime, Mr Lewis also signalled that he was looking for new ways to free small housebuilders from excessive regulation.

The government has “no big plans” for “surprise changes” to the national planning framework, but developers wanting to create up to five homes on small sites outside London — for example at the edge of villages and suburbs — should face a quicker, simpler planning regime, he said.
However, this should not undermine the quality of architectural design of new homes, Mr Lewis added.

Om a small plan then, and small it is.  Successive conservative spokesmen over many years have fantasied over scenarios that if only every village had ‘1 or 2′ or ‘1 to 5′ extra houses all would be ok. David Cameron gave a speech much teh same rather naively believing  this would be what the NPPF would produce.   The maths do not add up, there are not enough villages, around 10,000 or so only of which around 1/4 still have any reasonable services left at all.  With the NPPF we did not get ‘1-5′ but typically, 20, 30, 40 50 anything ip to several hundred or more and often completely out of scale.

The planning system in England is neither quick or simple and doesn’t deliver enough.  But delivering small sites more quickly will do little to deliver more indeed it could deliver less if it signals that policy is shifting away from large village sites to smaller ones and it produces a perverse incentive to go down a small sites route- financially and politically.  Why take the risk of going for 200 houses and having the site called in if a fast track route sure of 5 exists.  Just put in multiple 5 site applications forget about masterplanning.

This is yet another sign of Brandon Lewis being scared of size, too weak to take the big decisions to ensure we build enough housing.  It is cover for his pro-nimby bias, the mindset of a shire tory Councillor.  Such a mindset has had and will have only one outcome, building less and less housing.

How could it be made simpler?  Well there is only one thing at the moment which really makes every appeal complicated, demonstrating a 5 year supply, remove that requirement for small sites and extend the presumption.  Do that and you would get a flood of applications, but whilst such applications are still subject to appeal the onus would just shift to landscape and other objections.

The government at the moment is going through every alternative but allocating more big sites on undeveloped land.  Yes we can do more, such as redeveloping council estates etc.  but none of the numbers add up, all are hard, most will likely have perverse consequences given the immeasurable ability of the government to mess up planning regulatory reform, and with the diversion of planning effort and energy will likley simply accelerate the housing shortfall.

Whenever a planning minister gives a speech about small sites or soft targets you know they have missed the target through aiming in the wrong direction.