St Ives – allocating land without a plan – JR leave granted

Both Outlaw and Planning dont give the basis for the JR granted by a Parish Council against Huntingdonshire’s ‘St Ives West -Urban Design Framework’ .  But the clue though is its previously description as being ‘interim guidance’

Huntingdonshire has an adopted core strategy indicating at least 500 homes at St Ives, 400 on Greenfield land located ‘in a significant greenfield development to the west of the town’  But their is no allocations DPD setting out its extent.

One thing SPD cannot do of course is allocate land – so this would appear to be the basis of the challenge.

It will be interesting to see a modern re-run of the now very old St Portland Estates Case which set out the dictinction between statutory policy and guidance.

Of course we now have section 17(3) of the 2004 Act

The local development documents must (taken as a whole) set out the authority’s policies (however expressed) relating to the development and use of land in their area.

As far as I can remember I dont think the precise meaning of this has been tested in court before.  Does it mean for example that if it is policy (as opposed to guidance) it must be in a LDD, or only once the LDD is prepared?

3 Errors in the PINS Model Local Plan Policy on The Presumption #NPPF

The Planning Portal has updated its section on the presumption in the light of the NPPF.

It includes a model policy which according to the PAS website is considered so important by ministers that it should be included in every plan in the country even if it duplicates the NPPF.

When considering development proposals the Council will take a positive approach that reflects the presumption in favour of sustainable development contained in the National Planning Policy Framework. It will always work proactively with applicants jointly to find solutions which mean that proposals can be approved wherever possible, and to secure development that improves the economic, social and environmental conditions in the area.

Planning applications that accord with the policies in this Local Plan (and, where relevant, with polices in neighbourhood plans) will be approved without delay, unless material considerations indicate otherwise.

Where there are no policies relevant to the application or relevant policies are out of date at the time of making the decision then the Council will grant permission unless material considerations indicate otherwise – taking into account whether:

• Any adverse impacts of granting permission would significantly and demonstrably outweigh the benefits, when assessed against the policies in the National Planning Policy Framework taken as a whole; or
• Specific policies in that Framework indicate that development should be restricted.

Why does this need to be a policy at all.? The key good practice principles are policies should be about decisions not process so para 1 would normally be struck out

Whilst development plan policies should not duplicate national policy so the rest of the policy would normally be struck out.

However I imagine the reason is section 38(6) – to embed the decision taking rule from the NPPF para 15 into the plan led system. To my mind though this could be done by incorporating all of the model policy apart from the first para as a local plan policy (a final implementation policy maybe), and including the first para as supporting text – which scans much better.

Also the model policy has flaws in wording as it says ‘the council will’ twice.  Ever since the very first ‘Better Local Plans’ in 1997 that has been taboo – as policies should be written to apply to any decision maker or implementation body

So perhaps it should bread ‘then the decision maker will’ to account for inspectors, SoS decisions devolved to parishes, decisions by the Mayor of London and other Elected Mayors (if powers are changed) and of course not all parishes have parish councils but parish meetings) etc.

I should add the taker/maker distinction comes from French. Decision taking is the bureaucrat and the process, decision making is the final decisive act. In Spanish decision takers never get around to ever becoming decision makers. So decision maker is to be preferred.

Kirkwells ‘The Great Electric Experiment is Over’ for Windfarms? #NPPF

Kirwalls has fun with the new Anti-windfarm group NOW, which we covered a bit this morning,  seeking a theme song.

They plump for the wonderful Noel Harrisson (three guesses who his dad was) and ‘Windmill of My Mind’  my absolutely favorite flower power era singer.

But how could Kirkwalls miss the title track of  Noel’s best album ‘The Great Electric Experiment is Over’

Of course the track want about Bob Dylan and the great folk – rock bifurcation at all – with a side swipe at Nuclear power in a very English nostalgia for a rural post-urban idyll way – no it was clearly a premonition about windmills – double meaning it must have had a treble! – hence ‘windmills of your mind’- it all makes sense now.  Look where those colourful tablets get you.

And of course without electricity, as the lyrics of the song say the grass grows through the streets, perfect.

The Wainhomes Prematurity JR – Full Judgement #NPPF

Tracked down this case on Balii – Wainhomes being one word, which we touched on earlier in the week.

Wainhomes (South West) Holdings Ltd v Secretary of State for Communities and Local Government & Anor [2012] EWHC 914 (Admin) (04 April 2012) 

Key extracts

The first ground of challenge is inconsistency between the dismissal of the appeal in the present case and the materially similar decision in “Binhamy No. 2” on the issue of prematurity. Mr Elvin relied on the principle enunciated by Mann LJ in North Wiltshire DC v Secretary of State for the Environment (1992) 65 P & C.R. 137 at 145; [1992] JPL 955 at 959, which has been widely followed…

In the North Wiltshire DC case Mann LJ stated:

 “One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest, and it would be wrong to do so, that like cases must be decided alike. An Inspector must always exercise his own judgement. He is therefore free upon consideration to disagree with the judgement of another, but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision.”

Mr Justice Beatson considered that there was key difference from the earlier Bihamny appeal (at Bude) where the SoS had (following the first decision being JRd) allowed the appeal.  The size of the site and the availability of an alterative site amongst them.

 There was also the question…of the fact that the application proposed a phased development, and that one way in which allowing the claimant’s appeal would prejudice the LDF is that the appeal proposal might prevent a scheme which is of the same size as phase 1 of this application coming forward at a better location.

This was the key issue here, there was a better site preferred in the draft plan.  At Binhamny the sites were too small to be strategic sites.

The decision letter in the present case is clear in stating that it found in favour of the claimant on the question of need, but against it on the overall balancing of considerations, and the conclusion on prematurity, because of the scale of the present application.

Successful JR in Basingstoke Case to Stay Plan Submission #NPPF – Early JRs now more likley

We covered the Marydown case The Manydown Company Ltd. v Basingstoke and Deane Borough Council [2012] EWHC 977 (Admin) (17 April 2012)  – a few weeks ago.  As we said

 it refused to consult as a reasonable alternative 809 ha of land at Manydown, even though it purchased it (the original owner retained an option agreement) 16 years ago precisely to develop as housing.  It is the owner of the option agreement that is now the challenger.

Justice Lindblom issued his high court decision on Monday who sets the background

In 2005 the Council unsuccessfully proposed the Manydown site for development in its local plan process. But after a change of administration in 2006 the Council decided to suspend its involvement in the active promotion the site for development. This remains the Council’s position. As landowner it has decided that it will not review this position until after the Core Strategy has been formally adopted. And as local planning authority it has also decided that the Manydown  site is not available for development, and therefore that the site should not be identified for development in the Core Strategy. The claimant says that the Council has relied on its decisions in 2006 and 2009 as a basis for preventing the inclusion of the site in the Core Strategy, that its refusal to reconsider those decisions betrays a determination not merely to hold off promoting the development of the land but actively to prevent itself from including the land in the Core Strategy, binding itself instead to a position that thwarts the development of the site. This, says the claimant, is plainly unlawful. By refusing even to reconsider its position the Council has prevented itself from considering circumstances as they now are, and has shut out the possibility of the  Manydown land being allocated for development to fulfil the purpose for which it was acquired. This, says the claimant, is directly contrary to the objectives of the relevant statutory power. None of that, however, is conceded by the Council. It says it has acted lawfully throughout, in accordance with its statutory duties and without exceeding its statutory powers.

On the key issue of whether JR should await conclusion of the plan process

 In a case such as this an early and prompt claim for judicial review makes it possible to test the lawfulness of decisions taken in the run-up to a statutory process, saving much time and expense – including the expense of public money – that might otherwise be wasted. In principle, it cannot be wrong to tackle errors that are properly amenable to judicial review, when otherwise they would have to await the adoption of the plan before the court can put them right.

On the issue of wether the site was ‘available’

the Cabinet’s decision was irrational. If it had directed itself properly on the facts before it, the Cabinet could not reasonably have reached the conclusion that the Manydown site was not available. There was no logical or defensible basis for the decision it took. If the Council’s true position was that, despite the continuing suspension on the site’s promotion for development, it remained available for development, and that there was no reason why it should not come forward for development in the course of the Core Strategy period, the Cabinet appears not to have appreciated that this was so.

Justoce Lindblom in the key sentence, of a very complicated judgement,  stated

 If the claimant’s true remedy is to be found in the Core Strategy process, it is of paramount importance that the proceedings in that forum are not distorted before they begin…

the Council’s conduct as landowner is not, in itself, a matter for consideration in the plan-making process. The Inspector will have to judge whether the Core Strategy itself is sound, not whether the prior decisions of the Council as landowner were lawfully taken. … until the Council as landowner has properly addressed its responsibilities in that role, and has done so with a firm grasp of the statutory purpose for which it acquired the Manydown land, the claimant will face an unfair disadvantage as a party to the Core Strategy process. Without the intervention of the court, there seems little prospect of that disadvantage being removed in time for the Manydown site to be effectively and fairly considered in the consultation and subsequent stages of the Core Strategy process.

It is necessary to require the Council to do two things: first, to reconsider its position on the promotion of the Manydown  land in the light of what I have said about its responsibilities as landowner, and second, to reconsider the form of its pre-submission Core Strategy in the light of what I have said about its responsibilities as local planning authority. The effect of the order I intend to make should not be misunderstood. It is not to force the Council as landowner to promote the Manydown land for allocation in the Core Strategy. Nor is to force the Council as local planning authority to support such an allocation, or to depart from the strategy it has chosen. Rather, it is to ensure that neither as landowner nor as local planning authority, and neither by anything it does nor by anything it fails to do, will the Council prejudice its own Core Strategy process.

So to conclude early JRs are now more likely at pre-submission stage rather than going through the whole examination process and then being found unlawful, as has been found in the Forest Heath related SEA directive cases.  This makes sense to avoid cost and further delay.

Lindblom seems to clear up conflicting caselaw on whether early JR on consultation plans is permitted under the act or not. Again it underlines the point, you have to include reasonable alternatives in plans even if you dont wish to support them.

Since Inspectors findings are de-facto bindings, althoiugh after the localism act the LPA will have to put forward themselves to make the plan sound – on a ‘please sir can I have another’ basis, LPAs may be forced to put foward major options they do not agree with, which mow having been consulted on and SEAd would be fully lawful.

Put simply LPAs will not be able to avoid dealing with alternative options with which they disagree.  The will need to evidence and convince their case, not by procedural means trying to omit its consideration.

More Planning Omnishambles Over Davey’s Shift Against Wind #NPPF

The Daily Mail quotes one of its usual ‘government sources’ by which it means coalition plotter of course

a Government source said that Tories were celebrating Mr Huhne’s departure and that there had been a ‘recalibration’ of the policy, adding: ‘Chris Huhne was too much of a zealot about wind power. Thankfully Ed Davey is far more reasonable.

Whilst Greg Barker – the renewable energy minister is quoted as saying

‘Far from wanting thousands more [wind turbines], actually for most of the wind we need… they are either built, being developed or in planning. It’s about being balanced and sensible. We inherited a policy from the last government which was unbalanced in favour of onshore wind.’…

Or inherited from the last Secretary of State.  But sources close to the Department for Energy and Climate Change, according to the Mail,  said there was ‘no U-turn on wind farms’, adding: ‘This is not a change in policy.’

Of course Change Secretary Chris Huhne has previously stated that  around 10,000 onshore turbines were planned in order to meet targets.  Not ‘EU’ targets as the Mail states but British targets in British legislation in the fourth carbon budget.  Of course this is being reviewed in 2014, and the coalition disagreement is between Nick Cleggs position that it should exceed EU minimum carbon reduction targets and Osbournes that it should not (and one suspects he would ignore them altogether on the advice of his friend Lord Lawdon if he could).

Of course this means that there is no agreed national policy on carbon reduction targets past 2014, meaning it is impossible for renewable industries to plan beyond that date and impossible for local planning authorities to set targets beyond 2014.  Wind adds another layer to the national planning policy omnishambles.

At each and every windfarm planning application the starting point was national carbon reduction targets and how relatively important a site was towards meeting targets balanced against impact issues. Of course once national targets were set local planning authorities, individually or working in partnership could use evidence to set appropriate targets together with the usual trade offs to zone suitable or unsuitable areas for them.  The final NPPF allows that local setting of policy in a national content.  But government policy is in flux, blank beyond 2014 and gives no indication where to draw the line between promotion and protection – it is a shambles.

Gren Barkers speech has been interpreted as saying no to onshore wind, it was not.  At least no though a bad policy would have been a clear one.  No we have a policy which says that most of the applications made should be approved, because it will meet most of a target we don’t yet know.  But because we don’t yet know that target so we don’t know how much of the pipeline needs to be approved and we dont know how much extra capacity not yet applied for needs to be applied for.

So why should anyone invest in wind?

How can inspectors weigh and balance these issues?

Whats more Greg Barkers speech gives the impression that at the parliamentary vote on NPS1 EN 3 that somehow Mps fogot that there had been an election and voted it through.

Is Greg Barker now saying that there is to be a re-issue of NPS1 to reflect post Huhne priorities?  No they are not its much more subtle, by sending new signals it is trying to cut off the pipeline of investment for new schemes beyond those already submitted.

Of course Cameron is due to give a speech to ‘reassure investors’ forced by Clegg.  Expect the speech to be foggy enough to annoy every side.

Of course this gives the perfect opening to anti-windfrm groups which today launches National Opposition to Wind.

Of course

Sheriff Probing celebrities adore this Range Rover

I was researching for my series – planning applications of the rich and famous, the intriguing hint that one of the things Chinese political gangster Bo Xilai is being charged with is a planning enforcement issue, demolishing half a sacred mountain in a national park without consent to erect a monument to the Chinese Police.

Sadly I cant bring you a photo of this sites, of great cultural significance and near the site of a maoist era memorial of a massacre, because the area’s tourism webpage has very colourful English, no photos and rather unexpectedly turns into the worlds worst cookbook.

Geleshan for is full of myths and fables… Sheriff Probing celebrities adore this Range Rover….As China’s first forest Sports Park, Forest Park also introduced Geleshan Clarion flying down the forest off-road go-kart, air venture maze, off-road mountain biking, fairy anecdotes…alphabetical will be sports, fitness, amusement and cultural melting into 1, …people Climbing, Geleshan fifty-one sporting sports, Geleshan five steel male game, challenge the Guinness Book of Dianqiu contest…

Many people from the video In highly coarse prison conditions, his efforts to learn technological and cultural perception, his chalk and Wong Nai set into operation with the toilet paper, causing numerous visitors to stop in this meditation: how today’s children live cheerful, competent to sit spacious and shine classrooms,Gluttonous, learning and cultural perception….

Gele Le Gele farm farm music is not the orthodox farmyard farm economy based music, and numerous have amplified into a monetary leisure, tourism, vacation and distraction resort Villa had…..

Currently, the town has 43 farm amusement, including the Heavenly Lake Resort, home observance, dragon leisure union, Cave farm melody and other characteristics of the farm a number of melody have been created and continue to amplify the scale, improve grades. Many units also City Tourist Board for a According to lacking statistics..

The resort has a wide lake because guests to rustic folk boating, fishing. As well as chickens, ducks, fish, rabbits and other raw materials for authentic and innovative cuisine farm edible arena is dissimilar trait aboard the Heavenly Lake Resort. Geleshan Spicy Chicken practice materials: chicken 250g, oil 300g, Sichuan Pickle 30g, dried chili (chili peppers best) 150g, pepper 50g, cooking wine 20g, soy sauce 20g, MSG 5g, salt 15g, Sichuan spicy sauce 30g, onion a little…

fried chicken with hot oil must be flamed, or chicken will not work very long thump dry arrival, even now such a long deep-fried dried, it is truly done, a hunk of dead meat, difficult to dine, not taste at all complete, so the fire have to be huge, deep-fried frail outside, and there is too relatively soft.

Sounds an intriguing place, but might take a sandwich with me.