The ‘Ogdon Test’ for avoiding a lawyers charter in the #NPPF

 ‘When it comes to [explanations] we must make sure that they are readily comprehensible. We must assume the most stupid circuit judge in the country and before him are the two most stupid advocates. All three of them must be able to understand what we are saying‘.”

The late Micheal Ogdon Qc  Variety is the Spice of Legal Life p. 182 2002

Washington Post Covers the #NPPF – developers plan ‘US Style Subdivisions’


A battle for rural Britain


The rolling hills of Great Cornard, England, immortalized by the painter Thomas Gainsborough, are where one developer wants a new U.S.-style subdivision of 170 homes


Anthony Faiola/The Washington Post.

GREAT CORNARD, England — In this graceful patch of the British countryside, a lush glade gives way to a horizon of rolling hills immortalized by the painter Thomas Gainsborough in his 18th-century masterpiece “Cornard Wood.”

Loved by locals for horseback riding and rambling walks, this picturesque setting, one British builder now thinks, is also ideal for something else — a new U.S.-style subdivision of 170 tract houses.

The resulting uproar in this sleepy town of 8,000, where one-quarter of residents have signed a petition to stop the project, is but one skirmish in a nationwide battle suddenly raging over the future of rural Britain.

On one side is a national government eager to build Britain out of its economic doldrums, seeing a new wave of residential and commercial construction — even in small towns and villages — as a major weapon in its fight to halt the country’s slide into another recession.

On the other side are a host of communities and conservation groups desperate to defend a rural beauty glorified by the words of William Blake and the brush strokes of Gainsborough, and today embraced by scores of Britons as a pillar of their national identity.

“They want to pinch our green land for profit,” quipped Barbara Cornish, 70, whose quaint home, the Brambles, rests a short walk from the site of the proposed development. “Well, I tell you, we just won’t have it.”

The tug of war over development in Britain underscores the tensions erupting as cash-strapped Western governments come under increasing pressure to find creative ways to return to a now-lost cycle of economic growth.

The opening shot here was fired last summer, when Britain’s Conservative-led coalition government unveiled the most sweeping changes to national planning codes since the 1940s. The proposed rules boil down 1,000-plus pages of guidelines to just 52, aiming to jump-start construction in a country where housing starts have fallen to levels not seen since 1923.

With developers citing tough zoning codes as one reason for that decline, the proposed rules suggest that local communities should now give a default “yes” to construction projects. Critics say they also water down protections for undeveloped green spaces. In a separate move, the national government is acting to incentivize growth, literally offering to pay local communities for each house built in their districts.

The British housing industry is hailing the effort as the perfect economic pick-me-up at a time when the economy here is failing as the government slashes public-sector jobs and cuts spending as part of a national austerity drive. Proponents promise that the proposed rules will create four jobs for each house built. And unlike the overbuilt societies of the United States, Ireland and Spain, new stocks of houses, they insist, are direly needed in Britain, where a baby boom and high flows of immigration have created an estimated shortfall of 1 million homes nationwide.

“What we see is an anti-development lobby taking the opportunity to hijack a debate over planning with scaremongering messages of concreting over the countryside,” said Steve Turner of the Home Builders Federation of Britain. “They simply don’t grasp that we need new homes in places all over the country.

Yet the government and its allies appear to have grossly miscalculated the public reaction to the plan. Critics say it risks the eruption of unchecked, Los Angeles-like urban sprawl in cities such as London. Some also cite economic concerns that the government may be laying the groundwork for a short-term, U.S.-style housing boom that will only go bust as builders find that many prospective buyers are shut out of the market because of tightened mortgage lending rules.

But by far the biggest outcry has been over the implications of encouraging development in England’s picture-perfect countryside.

The blistering criticism is coming not only from liberal-leaning environmental groups but also the touchstones of British conservative thought, including the Telegraph newspaper, which unleashed a scathing series of stories titled “Hands Off Our Land.”

Prince William, the second in line to the British throne, appeared in a YouTube video this month extolling the virtues of countryside preservation. The National Trust, one of Europe’s most influential nonprofit conservation bodies, has bitterly opposed the plan, as has the influential Campaign to Protect Rural England.

“This is a densely populated country, and the people of Britain are deeply connected to every square inch of our landscape,” said Ian Wilson, head of government affairs at the National Trust. “Now there are people in government who are trying to use the planning system to stimulate economic growth, and we think that’s very wrong. You cannot put a monetary value on everything.”

The changes, set to come into effect as early as this year after a period of open debate, would have their most direct influence in villages and towns with outdated planning codes.

As the debate reached a fever pitch this month, Prime Minister David Cameron weighed in, promising opponents that the government still intends to protect beautiful rural landscapes. But he also warned that extraordinary measures are needed to get the country growing again.

“To those who just oppose everything we’re doing, my message is this: Take your arguments down to the job center,” Cameron said. “We’ve got to get Britain back to work.”

That stance has left rural activists across Britain fearing that the guidelines will give fresh momentum to pending and controversial construction projects, including one that could see houses built in woodlands once considered part of the storied Sherwood Forest. In Kingswood, a tiny village in southwest England, residents who worry that the guidelines would be used to approve houses on a site that might harbor Roman ruins recently protested by dressing the local children up in togas.

Here in Great Cornard, a local citizens group is on a crusade against the 170 houses proposed on what are now cozy fields of wheat that buffer the woodlands above from encroaching development below.

They concede that a measure of the area’s rural character has already been lost to growth in recent years, as this community, an hour and 20 minutes by train from central London, has become a favorite among city commuters seeking more space. But the small town, a short drive from Gainsborough’s birthplace, still has its village lore. The local children, for instance, continue to tell stories about the mystical fairies said to live in the canopy of trees by the woodland’s edge.

“But by forcing growth, we lose that character that makes us special,” said Michael Evans, 68, grounds manager of a 13th-century estate nestled high above the proposed housing development. “We’re not against economic growth; we, in fact, want it. But we are against economic growth and development in the wrong places.”

SoS rules Health Facility S106 Contributions outside CIL Regulations

Thank you to Mills and Reeve for drawing attention to the following appeal decision in Preston.

A nearby primary care facility was at capacity and the PCT asked for a capital contribution for extension.

The appeal was dismissed.  It was a pretty outragious case.  Part of the Central Lancs New Town was masterplanned as a Golf Village.  The golf Course was flogged off by them english Partnerships with a unenforceable covenant swiftly removed and the golf course closed and left to rot whilst Taylor Wimpy sought consent for development with the new landowner.

But in the decision notice both the inspector stated.

I find the matters relating to a financial contribution to health services in the form of improvements to the Ingol Health Centre or other
health purposes are outwith the Regulation and do not satisfy the tests in the Circular. (277)

And the SOS concurs

On the matter of the financial contribution to health services at IR277, on the evidence available, the Secretary of State sees no reason to disagree with the Inspector’s conclusion that this is outwith the CIL Regulations and does not satisfy the tests in Circular 5/2005.

What regulation, what tests?  The CIL regulations include medical facilities within the definition of infrastructure.  If infrastructure is at capacity that surely passes the necessity test?  What a strange decision. This wasnt an issue of revenue funding but of capital.   I hope HUDU write to the SoS asking for this matter to be urgently cleared up.

Group Formed to update SHMA Guidance – will government Back It?

Inside Housing

Housing and planning bodies have joined forces to create a new group designed to give local authorities clearer guidance on planning issues.

 The housing charity Shelter has linked with the Town and Country Planning Association, Home Builders Federation and many others to deliver the Local Housing Requirements Assessment Working Group after research showed councils need more guidance.

Shelter found that 80 per cent of local authorities questioned in a survey agree that more guidance is needed to help them accurately estimate local housing requirements.

The research, carried out by the Cambridge Centre for Housing and Planning Research, indicated that without updating existing guidance there will not be the consistent approach needed across local authority areas to meet the new ‘bottom up’ approach, as set out in as the Localism Bill.

To meet this need the LHRA working group has been set up to work with practitioners to demystify estimating local housing requirements and is calling on the government to work with them in doing so.

The group aims to produce the toolkit in Spring next year.

Nicky Linihan of the Planning Officers Society, and chair of the LHRA working group, said: ‘Previously councils used the number of houses handed down by the regional plan.

‘Now the onus will be on them to take their own view on how many homes are needed and it is imperative to public trust that these figures are arrived at in a clear, consistent and transparent way.

‘Clear, practical guidance is needed to help councils do this robustly and accurately.

‘We are exploring how we can support them by producing advice that is drafted by practitioners for practitioners.

‘We believe this will allow us to focus on the questions being asked by those who have to produce local plans in terms that they can understand and use. However, we need government to support us in this work.’

Campbell Robb, Shelter’s chief executive, said: ‘How many homes are needed and where they should be built is one of the biggest issues facing local authorities and will directly affect millions of people currently in desperate need of a decent, affordable home.

‘We hope that by helping to produce this toolkit, local authorities will be able to more accurately address the housing shortage in their local area.’

Yesterdays Final Lords Debate on Localism Bill – Government on #NPPF Sustainability Definition

Here Parliament UK

Direct link to Hansard record of debate


Very interesting debate on the differences between predisposition and predetermination – if you are into that.

As well as whether the definition of sustainable development should be on the face of the bill or in policy.

Baroness Hanham

My Lords, in the previous debate I promised to go away and think about what should be done and whether sustainable development should find itself in legislation or in the national planning policy framework. It has been clear throughout the passage of the Bill that this matter has demanded careful consideration. It has been raised over and over again….there should be no doubt about the Government’s commitment to securing sustainable development through planning and to meeting environmental, social and economic needs in a balanced way. Those are the three legs of the stool that reference the planning side. It has been apparent from the debates we have had on the Bill and in the House that we need to be clear and to go further in setting out how our commitment can be achieved.

Having agreed to go away and come back with our view on whether the Bill could be amended to effect this aim or whether it could be part of the consultation on the draft national planning policy framework, it is appropriate to say more on that. ..

We now have the benefit of the consultation responses and the draft NPPF. As noble Lords have said, there are 14,000 replies, and many of them are going to address this specific issue. We also have the evidence given to the environmental audit committee, so there is quite a lot of external thought coming on this. Of the responses that we have been able to look at so far, many have made a cogent case for defining sustainable development in more detail in the NPPF. Noble Lords have also voiced strong views about what should be included. Clearly, we need to tailor our definition in the light of all the views we have received. This is something that we intend to do as we revise the document. The explanation will not be a legal requirement in the Bill but will address the policy issues in the policy framework.

We cannot finalise our policy on the NPPF until we have considered all 14,000-plus responses, so I am not going to try to pre-empt that, but important themes are emerging that we want to take into account as we refine our approach. In particular, we know that we need to address the way in which the definition works alongside the presumption in favour of sustainable development, so it is clear that what we want to see through the presumption is that development is sustainable.

The planning system should help to secure net benefits for present and future generations, including promoting strong, vibrant and healthy communities together with protecting and enhancing our natural, built and historic environment-we have always had a commitment to that, but I think some of it got skewed during the early part of the consultation process, almost before it had started-in situations in which there could be limits to the environment’s ability to accept further development without irreversible damage.

We will carefully consider what noble Lords and noble friends have said about building on and explicitly referencing the principles that underpinned the 2005 UK sustainable development strategy, which is the relevant strategy. We are crystal clear-as the noble Lord, Lord Greaves, pointed out, my honourable friend Greg Clark, who has been managing this Bill, is clear-that sustainable development has the three legs that we have spoken about: environmental, economic and social dimensions. The purpose of the planning system as a whole is to achieve a balanced outcome-I hope that this to some extent addresses the question asked by the noble Lord, Lord Howarth-that actually reflects all three of these points.

From everything that we have heard to date, I believe that the national planning policy framework, rather than legislation, is the place where we can deal with these practical issues most effectively. It is in the national planning policy framework that we can explain fully what we mean by sustainable development and how it relates to planning. The NPPF will be the key policy reference for those preparing plans as well as an important material consideration for dealing with planning applications, so while I understand that the intention behind Amendment 51 is to ensure that there is a detailed definition of sustainable development in the Bill and that it applies to all functions related to planning, my response is the same as when this amendment was put forward on Report.

As the debate on Report showed only too clearly, it is difficult to deal with the practical application of sustainable development in legislation. We heard then the wide range of views on what the legal definition should embrace, and other elements were added, such as the cultural and the spiritual. Because of this flow, it really is not suitable to put a definition into the Bill.

The amendment by the noble Lord, Lord McKenzie, also risks unintended consequences. I said on Report that the more you seek to define sustainable development in legal rather than in policy terms, the more trouble you are likely to get into. You end up creating more and more tests that may be impossible to comply with in every situation. The result is likely to be disproportionate box-ticking to avoid the risk of challenge to decisions, rather than the more considered approach to how the planning of an area can promote sustainable development.

What I have said does not, of course, represent any weakening of our resolve to maintain a strong statutory basis for securing sustainable development through planning but keeping it at an appropriate board level. That is found in the existing duty, in Section 39 of the Planning and Compulsory Purchase Act 2004, on those preparing local plans to do so with the objective of contributing to the achievement of sustainable development.

In the amendment that we tabled on Report, the principle is extended to neighbourhood planning by placing on all neighbourhood planning proposals an explicit condition relating to sustainable development, and the new duty to co-operate in planning for sustainable development that the Bill introduces will ensure that councils and other public bodies co-operate effectively on strategic planning matters, which includes sustainable development.

Taken together, these legislative requirements will ensure that the principle of sustainable development runs through all levels of planning-strategic, local and neighbourhood. Because decisions on individual applications must by law be plan-led, the goal of sustainable development will permeate the planning system as a whole.

I began by setting out our firm intention of expanding the definition of sustainable development in the national planning policy framework and addressing key concerns that have emerged from the consultation. With that assurance in mind, I would like to explain why I think that Amendment 50 is unnecessary. Ever since sustainable development became a key policy concern in the 1980s, all Governments have issued policy statements on its meaning and application. This Government are no different. We published our vision for mainstreaming sustainable development in February this year, and for the planning system the national planning policy framework will provide a coherent statement of how sustainable development should be interpreted and apply. A statutory requirement to produce guidance would not add to what we are doing already. What matters, as I know noble Lords recognise, is what the guidance contains. We are, as I have explained, committed to getting that right.

With the strong statutory underpinning for sustainable development that I have set out and our firm commitment to using the national planning policy framework to set out clearly what this means in practice, I believe that we will be able to deliver what all sides of this House want to see: a positive planning system with a clear and unambiguous mission to deliver sustainable development. I hope that the assurances I have given will enable noble Lords to withdraw their amendments on the clear understanding that I have accepted that this has been one of the most important aspects of our discussions.

On transitional arrangements

When we discussed this in the past, I pointed out the Government’s concern that there had been transitional arrangements on previous occasions which had resulted in only 40 councils having local plans, with some of the remainder being on tap and others having some being prepared. Transitional arrangements are a bit of a worry. In response to a question today, I said to the noble Lord, Lord McKenzie, that this is very much in our minds and I can confirm that that is the situation. We are looking very carefully at transitional arrangements, particularly in respect of the analysis of the NPPF and what that will throw up. We have listened also to the views of the Local Government Association and others and will be taking them into account.

We place an enormous amount of importance on up-to-date local plans and we will put in place transitional arrangements that advantage plan making to reflect the fact that the national planning policy framework is all about putting local communities in control of planning decisions through their local plan. As I have said previously, the framework is policy not legislation and legislative measures are unnecessary as the Secretary of State can deliver transitional arrangements more appropriately through policy or guidance. That clearly will be part of the discussions and talks we are having about how much of that is required

It would also be helpful if I made it absolutely clear that the status of local plans will not change when the Bill is enacted and the final national planning policy framework comes into force. Local plans will continue to be part of the development plan and the plan will remain the first point of reference for decisions on planning applications and appeals. It is, of course, for local councils to decide when they should update their local plans-it is entirely a matter for them and their communities-but it is important that we help them through the process. We are supporting councils by simplifying the process of preparing plans. This will help provide flexibility so that councils can concentrate on issues that matter to them and their communities.

On the question about the Planning Inspectorate, we are working closely with it to make sure that the examination process can be quicker and that, if necessary, only parts of a local plan need to be reconsidered. It is a flexible arrangement and we are sure that the Planning Inspectorate will be able to help with that appropriately.

As we have discussed before, if there are policies and regional strategies that councils wish to incorporate in local plans they can do so by undertaking a review focusing on those policies. Councils can also continue to draw on evidence that informed the preparation of regional strategies to support local plan policies, supplemented, as needed, by up-to-date local evidence. The availability of an existing body of evidence will also help councils through the local plan review process and, consequently, transition.

The NPPF offers councils the opportunity to seek a “certificate of conformity” with national policy which will help them identify which of their existing local policies are consistent with the framework. We expect that many elements of local plans will conform with the direction of national policy. Where issues are indentified, councils should attempt to address these through reviews undertaken as quickly as possible. We will, of course, be considering any representations made on this point in the current consultation….only adopted plans will have the certificate of conformity.

I hope that I have made it clear that the transitional arrangements are still under consideration but that there will be transitional arrangements. I have been asked whether there will be guidance from the Secretary of State. It will set out as clearly as possible what the transitional arrangements are and any other procedural issues.

Let me conclude by reiterating-this is not my last word, unfortunately-the importance that this Government place on local plans and the need for effective arrangements, delivered through policy or guidance, to manage transition. I want to offer a firm reassurance that the Government recognise the importance of this, as I said earlier today, and will ensure that this is addressed alongside the revisions that are made to the NPPF itself. We are of course looking very closely at all the suggestions that have been made about transition during the consultation process.

We recognise there are genuine issues to be addressed about the status of local plans during the transitional period. I hope that I have addressed some of these tonight, but we will also be considering them further. With these reassurances I hope that the noble Lord will withdraw the amendment.

Greg Clark – Protect the Countryside – to Keep Eric Pickles in Pies #NPPF

Hansard  Yesterdays DCLG’s questions

Elizabeth Truss: Food and farming are vital to tourism and exports in Norfolk, and its produce is of very high quality, as the Secretary of State found out when he visited the Norfolk food festival in Parliament earlier this month. Does the Minister agree that the planning framework should take into account the long-term value of agriculture, as once farmland is lost, it is very hard to get back?

Greg Clark: My hon. Friend is absolutely right—and when I was talking to the Secretary of State earlier, he extolled the virtues of the pies available at the Norfolk food festival. We must take into account the long-term value of food security as well as the short and medium-term economic benefits of food production.

Lord Lloyd-Webber – Countryside in Danger – #NPPF – Telegraph


Lord Lloyd-Webber warns countryside and heritage at risk from lack of funding and uncontrolled planning
The countryside is in danger of becoming ‘saturated’ by semi-detached housing and bungalows, Lord Lloyd-Webber has warned.

He said the countryside was in danger of becoming a victim to the same uncontrolled planning which has ruined southern Ireland “one of the most beautiful countries on Earth”.

“The English Countryside is pretty much at saturation point now in development terms. If you want a reasonable tourism you have to have something for tourists to see – to attract them. They are not going to want to to see a whole load of semi-detached buildings or bungalows – which is what you get in Ireland,” he said.

The Government is currently considering reforms to the planning system that many believe will make it easier to build on the countryside.

The National Planning Policy Framework (NPPF) would introduce a presumption in favour of “sustainable development” and remove the presumption that ‘brown field sites’ should be built on first.

The National Trust and other environmental groups fear that the policy would result in unrestrained development and the Daily Telegraph has run a campaign against the current reforms.

Lord Lloyd-Webber did not comment on the NPPF directly, but he did express concern for the future of the countryside.

“The preference in rural areas has to be on preserving rural areas,” he said. “It is much easier to build on green field sites than it is anywhere else so there should not be a preference for building on greenfield sites.”

He also claimed successive governments have failed to protect England’s historic buildings.

The musical impresario said hundreds of churches, synagogues and monuments are in danger of falling down because of lack of funding.

“Successive governments have paid lip service to [heritage] and not realised how important it is,” he said.

Lord Lloyd-Webber said most of these historic buildings only manage to stay open, and indeed standing, because of the hard work of volunteers.

At a ceremony at one of his West End theatres, Lord Lloyd Webber awarded the ordinary men and women who have “put in their hard work, energy, sweat and tears in ensuring the countryside’s heritage can be enjoyed by future generations.
In only its first year, some 200 groups applied for the English Heritage Angel Awards.

The winners ranged from an Orangery in Somerset to a colliery in Derbyshire. A necropolis in Bristol, an Elizabethan barn in Kent and churches in Leeds and London were also honoured.

Lord Lloyd Webber said it was about time that the “heritage heroes” are thanked for their time and energy in protecting steam engines, old cinemas and other heritage for future generations.

“We take for granted people who do an enormous amount for buildings in their local community,” he said.
“In this day and age – when everyone is thinking about showbiz all the time, I thought it would be fun to thank these people,” he added.

Speaking afterwards Lord Lloyd-Webber warned that the funding situation for heritage is going to get worse because of the recession.