Capitalism’s Last Frontier #12 Triumph of the Planters

Prehistoric populations tended to grow rapidly to the carrying capacity set by the efficiency of the prevailing subsistence system for the climate and ecosystem.

In hunter gathering the amount of hunting that can be maintained is set by the surplus from gatering and the yield from hunting. As populations intensify big game is hunted to the level which cannot maintain hunting by big game specialists (Winterhalder and Lu).

This required a change in diet.  In part an increased consumption of small animals (Stiner et al) and an intensification of plant gathering which precedes agriculture proper

There was a dramatic increase in range of small topped and groundstone tools after 15,000 BP, reflecting the need to diversify hunting and gathering.   People only began to use the technologioes that underpinned agriculture only after 15,000 Bp (Bettinger 2000).  Many of the tools needed were similar, whether digging for tubers became the space and hoe, or cutting of crop became the synth.

Hunter gathering managed risk of yield variation, for example risk of a failed hunt, or of a storm disrupting gathering, through sharing. Human group living, the tribe or clan, indeed the family is a form of insurance against bad times.  The support of the group helped minimise risk of starvation for everyone.  Man did not emerge as a methodological individual but as a social animal.

The shift to agriculture involved an expanded strategy for coping with yield variation.  Multiple crops, a variety of fields, and development of alternative food sources, such as through contined but specialised hunting (such as fishing) and domestication of animals.

Although agriculture developed in the Near East in the early holocene about 9-11,000 BP. and then rapidly diffused to Western Asia, there were around 8-10 independent sources of agriculture, with China appearing to be an independent source about the same time.

The lead modern thesis is that climate change at the end of the last Glacial Age played a critical part.

The reduction in climate variability, increase in CO2 content of the atmosphere, and increases in rainfall rather abruptly changed the earth from a regime where agriculture was impossible everywhere to one where it was possible in many places. (Richerson, Boyd, & Bettinger 2001)

Population pressure theories (Cohen 1977) posit slowly accumulating global scale population pressure as responsible for origin of agriculture.

But as Richerson et al ask why not earlier, humans essentially modern 30, 000 years earlier.  Under their models Asia is filled up to its population carrying capacity from early agriculture in only 1,400 years.

The ending of the last ice age seems to provide an explanation, it could not have happened sooner.  What is more previous interglacials appear to have been short lived and highly variable, without several thousand years of steeled stable, warm, wet conditions encouraging increased plant gathering.

This sets out a potential, but what triggered the innovation?

With a human population living at low hunter gatherer densities and its food sources only able to sustain low population & pressure on population from declining hunting requiring increased plant gathering any improved method in plant intensification, either in terms of methods of proto-agriculture/intensified gathering or agriculture itself

The Buserup thesis states – any group that that can use land more effiiciently will, all things being equal, be able to evict a less efficient group.

‘An agricultural frontier will tend to expand at the expense of hunger gatherers as rising population densities on the farmer side of the frontier motivate pioneers to invest in acquiring land from less efficient users’

‘become richer through farming, or a dismal choice of flight, submission or military defence at long odds against a more numerous foe’. (Richerson, Boyd, & Bettinger 2001)

The ‘Africa pump’ allowed new wave of immigration out of africa by homo sapiens adapted to intensified huinting and gathering tactics in warmer latitudes.  A warming earth allowed their own frontier to extend northwards as reduction of steppe habitats drove megafauna south.  The result  extinction.  The extinction may have been most rapid in North America because man came from the north not south and so would have  required a greater proportion of meat in their diets and proportionately less on gathering/proto agriculture. The tools and techniques were more specialised for hunting.  But the success of the invasion of the Clovis people sealed their own fate as they destroyed their source of food so rapidly.

The rapid extinctions drove methane into the atmosphere and this increased warming, rapid feedback may have increased the rate of global warming and helped ensure that the non-glacial period was extended.  Man had helped create a climate window ensuring his rise to dominence.

Plant intensive communities as they became dominant could drive out hunter gatherers along an expanding margin of cultivation, as they could support much higher populations.  Individual hunter gatherers may have been better fed, but they were few.  Groups that had innovated because poor local conditions forced innovation or death at times of variabilty of food supply could then advance into better territory.

Robert Braidwoods Research, and modern geentic testing of wheats,  suggest that the slopes of the Zagros Mountains in South East Turkey were a key source of innovation spreading down to the dertile crescent (much wetter and fertile than it is today).

Around 11,000 years ago hunter gatherers were collecting wild seeds, probably the ancestors of Wheat and Barley, and were hunting the ancestors of sheep and goats, by 9000 BP they were settled in villages and were cultivating early varieties of Wheat and Barley. There is evidence from several part of the world of settlement prior to agriculture, but only where intensification of plant gathering made nomadic hunting and gathering unnecessary.

How then were seeds and animals brought into the domestic sphere.  The key is understanding the co-evolution of those plants and animals and humans.

Defining Sustainable Development – A Lawyers Paradise?

Minister Baroness Hanham has described a proposed defintion in the House of Lords a ‘Lawyers Paradise’.

If there was ever going to be a definition [of sustainable development], we would need to be very sure that it would be legally unchallengeable

Well if ever, in the last few months there has been no less than four officially endorsed definitions all very different. The Brundland Definition, The UK Sustainability Strategy Definition, the February Sustainable Development Vision and in the draft Presumption in Favour of Sustainable Development. No wonder people want it bolted down.

The definition she is opposing is being put forward by Lib Dem peers on behalf of wildlife link. They published there proposed alternative earlier this year.

It not a bad definition. It includes the notion of environmental limits, very similar to the definition in the New Zealand Resource Management Act which I think it is based on, that has been subject to caselaw of course after many years in operation but it hardly been a lawyers paradise. In any event if it is locked into policy not legislation will always involve lawyers.

For a punchier definition, from another legal system based on that of the UK, try that in the Quebec Sustainable Development Act which again has proven robust

‘an ongoing process to improve the living conditions of the present generation that does not compromise the ability of future generations to do so and that ensures a harmonious integration of the environmental, social and economic dimensions of development

A minor bit of tweaking and I think we are there with a definition even Greg Clarke and Wildlife link could both support

‘an ongoing process to improve the living conditions of the present generation that does not compromise the ability of future generations to do so, and that ensures, as far as possible, a harmonious integration of the environmental, social and economic dimensions of development within the limits set by the environment and technology.”

Latest Bizarre Stevenage Twist

Planning reports a successful N Herts challenge to a SoS decided appeal (by John Denham of the previous government in 2009) granting permission to an urban extension of 3,600 homes.

Ironically the appeal was successful in the main because of failure to impose a condition implementing the East of England Plan policy on Energy Efficiency.

So with Cala II if the appeal came back for determination the SoS would find it hard to ignore the RSS.

It would be even more ironic if the SoS said the RSS was no longer deliverable because of a ‘failure to cooperate’ by North Herts. This would in effect be an endorsement of failure to cooperate.

Stevenage might argue that these narrow points should be dealt with by condition.

However there is a planning vacume on the principal of the development with Stevenage Core Strategy being found unsound because of N Herts failure to cooperate on their side of the border, bad timing as only a few days later we had Cala II which said the grounds the inspector made his determination (revocation of RSS) was unlawful.

I guess there will be a series of JRs which will need to be coordinated as the SoS cant reopen the appeal until the status of the development plan issues are resolved.

The SoS could also be prempting his own proposed SEA of the revocation of the East of England Plan.

This has been going on for 5 years in Herts, and all down to a single cause, a lack of consideration of sub-regional options in a single simple SEA process, and sticking to the outcome of an agreed process.

National Planning Policy Framework Forensics #22 Recovered Cases-Call ins

A new policy on call ins for determination of cases by the Secretary of State is included:

The Secretary of State will not use his powers of intervention apart from in exceptional circumstances where the granting of permission:
• may substantially conflict with the National Planning Policy Framework;
• may affect the interests of national security or of foreign Governments;
• may raise issues of substantial national importance; or
• may raise potential conflicts with international obligations.

This replaces the current policy, from a 1999 written answer repeated in The Planning System: General Principles

Criteria for calling in planning applications for determination by the Secretary of State

“(The) policy is to be very selective about calling-in planning applications. (TheSecretary of State) will, in general, only take this step if planning issues of more than local importance are involved. Such cases may include, for example, those which, in his opinion:
• may conflict with national policies on important matters;
• could have significant effects beyond their immediate locality;
• give rise to substantial regional or national controversy;
• raise significant architectural or urban design issues; or
• may involve the interests of national security, or of foreign Governments.
However, each case will continue to be considered on its individual merits.”
(Hansard, Written Answer, 16 June 1999, col.138)

This is a key shift. The SoS is limiting his/her own discretion. No ‘in general’ or ‘may include’ and rather than ‘selective’ is ‘exceptional circumstances’ This is a good thing as call in slow and politicise the system and often tread on local decision making.

The international obligations clause is added at last. Necessary to meet treaties like the Habitats directive.

The phrase ‘substantial regional or national controversy’ is replaced with ‘raise issues of substantial national importance’ a good thing as controversy by itself is not material, what matters is the issues.

The architecture/urban design clause is deleted. So for example the SoS could call in a Tall building say next to the House of Commons (a World Heritage Site) but would find it hard to call in a design of a new country house not effecting any national designations.

The section seems a major improvement.

National Planning Policy Framework Forensics #21 Enforcement

The NPPF would replace PPG18 Enforcing Planning Control quite an old one from 1991.  Most of this is procedural, and in part has been supplanted by the more recent circular 10/97 and Enforcing Planning Control good practice guide (not currently available online).

The key extant policy sections from the PPG are

in considering any enforcement action, the decisive issue for the LPA should be whether the breach of control would unacceptably affect public amenity or the existing use of land and buildings meriting protection in the public interest;
enforcement action should always be commensurate with the breach of planning control to which it relates (for example, it is usually inappropriate to take formal enforcement action against a trivial or technical breach of control which causes no harm to amenity in the locality of the site); and
where the LPA’s initial attempt to persuade the owner or occupier of the site voluntarily to remedy the harmful effects of unauthorised development fails, negotiations should not be allowed to hamper or delay whatever formal enforcement action may be required to make the development acceptable on planning grounds, or to compel it to stop.

This would be replaced with

For the planning system to be robust and to fully achieve its objectives, local planning authorities should take a proportionate approach to enforcement. Where developers or individuals have proceeded without due regard to the planning process, resulting in unacceptable impacts on the local community, local planning authorities should take appropriate action.

I think it is reasonable to use ‘proportionate’ as shorter than ‘commensurate…etc’.  Unacceptable impacts on the local community, that is more problematic, it could lead to arguments that there would be no local community to be harmed, such as a new house in a wood.  This argument is frequently riasd at appeal and inspectors have no truck with it, they frequently say that this could be used too often.  Also could lead to arguments over heritage issues where only a national heritage body objects.  The PPG was very carefully worded on this issue and the NPPF is a step back that would make it harder to enforce.

‘Appropriate action’ – too wolly.  The original wording ‘whatever formal enforcement action may be required to make the development acceptable on planning grounds, or to compel it to stop’ strikes the right strident tone.  This phrase is often quoted in ombudsman cases where LPAS have not had sufficient enforcement resources.  What would the Ombudsman make of the NPPF wording?

JRF Report Government ‘Throwing the Baby Out with the Bathwater’

The JRF report published yesterday on delivering Sustainable Urban Neighbourhoods states:

The Government is reforming planning but is in danger of throwing the baby out with the bathwater by valuing ‘localism’ over the equally important requirement for strategic planning in the local authority and sub-region. A more opportunistic and flexible or market-based approach to planning is called for, but within a robust spatial framework that takes into account housing need, current and planned infrastructure, economic trends and opportunities for regeneration.

experience suggests that neighbourhood planning and participation, local authority development frameworks and subregional planning are complementary, and that each level is important to national sustainable development. …. It would be a significant mistake to delegate decisions on the optimum location of new housing in England’s communities solely to the neighbourhood level. Whether a city, town or village ought to add to its housing stock for the benefit of current and future generations is a strategic decision with significant long-term implications that needs to reflect infrastructure capacity. The people who ought to participate in
such decisions are not only local residents but all the residents of the ‘community of the local authority’ area and members of local enterprise partnerships, who should help all the stakeholders see the bigger picture.

Hear hear.

National Planning Policy Framework Forensics#20 Planning Conditions and Obligations

Conditions

Lets compare The Planning System General Principles on conditions

Local planning authorities can impose conditions on planning permissions only where there is a clear land-use planning justification for doing so. Conditions should be used in a way which is clearly seen to be fair, reasonable and practicable. One key test of whether a particular condition is necessary is if planning permission would have to be refused if the condition were not imposed. Otherwise, such a condition would need special and precise justification.

And Circular 11/95

On a number of occasions the courts have laid down the general criteria for the validity of planning conditions. In addition to satisfying the court’s criteria for validity, the Secretaries of State take the view that conditions should not be imposed unless they are both necessary and effective, and do not place unjustifiable burdens on applicants. As a matter of policy, conditions should only be imposed where they satisfy all of the tests described [below]. In brief, these explain that conditions should be

i. necessary;
ii. relevant to planning;
iii. relevant to the development to be permitted;
iv. enforceable;
v. precise; and
vi. reasonable in all other respects

With the NPPF

Local planning authorities should actively consider whether otherwise unacceptable development could be made acceptable through the use of conditions or planning obligations.

Planning conditions and obligations should be:

• necessary to make the development acceptable in planning terms;
• directly related to planning and the development proposed; and
• proportionate, fair and reasonable in relation to the scale and kind of development, and in all other respects.

In addition, planning conditions should also be precise and enforceable.

The necessity test is being made the law anyway so the policy is strictly only necessary for conditions.

The policy then is essentially the same as before, with the added clarification of the terms proportionate and fair which makes sense. I cant fault it I would only add three statements as footnotes extracted from the circular essential to clarify policy

It is unreasonable to impose a condition worded in a positive form which developers would be unable to comply with themselves, or which they could comply with only with the consent or authorisation of a third party … Although it would be ultra vires, however, to require works which the developer has no power to carry out, or which would need the consent or authorisation of a third party, it may be possible to achieve a similar result by a condition worded in a negative form, prohibiting development until a specified action has been taken.

To clarify that Grampian/negative conditions are still acceptable.

and

If a planning objection or a condition on the planning permission are equally capable of dealing with an issue the decision maker should impose a condition rather than seek to deal with the matter by means of a planning obligation.

and

A condition which duplicates the effect of other non-planning controls will normally be unnecessary, and one whose requirements conflict with those of other controls will be ultra vires because it is unreasonable.

The draft includes a section on viability which covers previous ground.  The only question I have is over ‘Local planning authorities should always consider the viability of development proposals when applying conditions and obligations.’  Always is a strict test.  Does it now mean they should employ red book surveyors to consider the viaibility of every condition?  If so it would bring the system to a crashing halt.  It should read ‘‘Local planning authorities should consider the evidence before them of the viability of development proposals when considering applying conditions and obligations, and if they are uncertain that a development would be viable with proposed conditions and/or obligations they should ask the applicant to sub,it evidence on this matter.’

This would prevent costly conditions etc. being imposed at committee and would give advance warning to developers.  Otherwise developers might go straight to appeal.

Obligations

Compared to Circular 05/05.

A planning obligation must be:
(i) relevant to planning;
(ii) necessary to make the proposed development acceptable in planning terms;
(iii) directly related to the proposed development;
(iv) fairly and reasonably related in scale and kind to the proposed development; and
(v) reasonable in all other respects.

The use of planning obligations must be governed by the fundamental principle that planning permission may not be bought or sold. It is therefore not legitimate for
unacceptable development to be permitted because of benefits or inducements offered by a developer which are not necessary to make the development acceptable in
planning terms (para B6)

The tests in the NPPF are essentially the same with ‘fairly and reasonably related in scale and kind’ replaced by ‘proportionate’

Para B6 should be retained though, an essential reassurance to the public that developers cannot offer ‘cash for sprawl’.

National Planning Policy Frameworks Forensics #19 Prematurity

There is a section on page 15 on determining applications.  It is not clear why this section could not be combined with the section on the presumption in favour of sustainable development, as I suggested earlier, it causes unnecessary duplication as the two sections have to be read together in any event.  Perhaps it is because it contains a section on refusing applications ‘which propose development in conflict with an up to date Local Plan which is consistent with the National Planning Policy Framework‘ .  The government clearly wants to only highlight the outcome of approval and tuck away the outcome, as of course set out by the law, of refusal.

A specific sentence replaces current policy on prematurity, in paras 17-22 of The Planning System General Principles states:

In some circumstances, it may be justifiable to refuse planning permission on grounds of prematurity where a DPD is being prepared or is under review, but it has not yet been adopted. This may be appropriate where a proposed development is so substantial, or where the cumulative effect would be so significant, that granting permission could prejudice the DPD by predetermining decisions about the scale, location or phasing of new development which are being addressed in the policy in the DPD. A proposal for development which has an impact on only a small area would rarely come into this category. Where there is a phasing policy, it may be necessary to refuse planning permission on grounds of prematurity if the policy is to have effect.
Otherwise, refusal of planning permission on grounds of prematurity will not usually be justified. Planning applications should continue to be considered in the light of current policies. However, account can also be taken of policies in emerging DPDs. The weight to be attached to such policies depends upon the stage of preparation or review, increasing as successive stages are reached. For example:
• Where a DPD is at the consultation stage, with no early prospect of submission for examination, then refusal on prematurity grounds would seldom be justified because of the delay which this would impose in determining the future use of the land in question.
• Where a DPD has been submitted for examination but no representations have been made in respect of relevant policies, then considerable weight may be attached to those policies because of the strong possibility that they will be adopted. The converse may apply if there have been representations which oppose the policy. However, much will depend on the nature of those representations and whether there are representations in support of particular policies.
Where planning permission is refused on grounds of prematurity, the planning authority will need to demonstrate clearly how the grant of permission for the development concerned would prejudice the outcome of the DPD process.

But this needs to be read alongside para 72. of PPS3

Local Planning Authorities should not refuse applications solely on the grounds of prematurity.

This is confusing but it effectively reads together as “where a proposed development is so substantial, or where the cumulative effect would be so significant, that granting permission could prejudice an emerging DPD by predetermining decisions about the scale, location or phasing of new development which are being addressed in the policy in the DPD.  However this should never be the sole reason for refusal. ‘

In contrast the practitioners draft states:

‘applications should never be refused simply because a plan is in preparation. In these instances, acceptable development should be approved.’

First reading of this suggests that you cant refuse on grounds of prematurity at all.  Not necessarily so.  The wording is confusing because it also can be read as a precis of current policy, if ‘simply’ is read as a synonym of ‘solely’ from current policy.  If it wished to rule out refusal in grounds of prematurity alone ‘simply’ would have been deleted. Plenty to keep the lawyers busy though.

Prematurity is a difficult issue.  It can simply be used as an excuse to stall on making tough choices on future development, and so some incentive is necessary.  However experience over the last 20 years has shown us that giving no weight to prematurity creates many problems.  Competing developers can try and trump each other by getting their applications in first and there is a danger of each planning appeal becoming a development plan examination.  If the issue of competing options cannot be considered then we get piecemeal planning that stops consideration of whether, for example,  two separate housing sites should be combined into one sharing a single school.

At its heart then is the issue as to whether or not you can consider a possible alternative.  For the underlying caselaw on this I would refer the reader to chapter 11 of Victor Moore.  A key test comes from the Magnall case, whether there is an alternative site which has less adverse effects and comparable advantages.

One of the peverse effects of past PPG on the issue was that for housing schemes an alternative site suddenly stopped becoming a material consideration when a draft plan was published. This was one of the reasons policy was toughened.

It would be clearer if the test was turned around.  Rather than being a test of prematurity it became a test of prejudice to good planning.

I would suggest the following rewording of the NPPF to reflect this.

‘The absence of an up to date development plan should never, by itself, be a reason for refusal of a planning application.  It is appropriate in some limited circumstances to consider alternatives to the scale, location or phasing of a proposal that has certain adverse effects or disadvantages to the public should be considered in the determination of the application.  The tests over whether it is appropriate to consider an alternative are :

• If the proposal would meet planning objectives (in the National Planning Policy Framework, and the development plan) and
• If there is clear evidence, such as in evidence prepared for a development plan, that the adverse effects or disadvantages would be less at an alternative site; and
• Either:

• The local planning authority has made a policy resolution as part of an emerging plan on its preferred location, or in a plan that has been submitted or examined (but the report has not yet been received) and if the proposal would prejudice this planning policy; or
• Where there could only ever be one permission granted for a development or only a very limited number of permissions.

This approach wraps up the issues of prematurity in the more general tests established in the Magnall case and in doing so has the advantange of having a more general test on the appropriate phasing and scale of development.