Update: North West London Waste Plan Inspector Ruling on Duty to Cooperate #NPPF

Apologies strange things seem to have happened with downloading two links at the same time yesterday which meant that the earlier post was misleading.

The inspector has now ruled on the issue

The substance of the submissions was

SEWPAG and EoEWAB jointly claim the NLWP has failed in the duty to co-operate in that it has failed in its obligation “to engage, constructively, actively and on an on-going basis” with regard to the development of the Plan.  The Councils have not engaged actively with the planning authorities outside London when preparing the Plan and no evidence has been adduced to show any such co-operation.

In response

 The Councils responded, accepting that in relation to the preparation of development plan documents, S33A “imposes a duty on specified bodies to co-operate with one another if there are strategic matters planned in the Plan”.  They also submitted that S33A of the 2004 Act defines a “strategic matter” very narrowly.  The relevant definition is “sustainable development or use of land that has or would have a significant impact on at least two planning areas, including (in particular) sustainable development or use of land for or in connection with infrastructure that is strategic and has or would have a significant impact on at least two planning areas…. .”

The Councils stated that the Plan is not proposing any development or use of land which would have a significant impact outside the 7 Boroughs (which constitute “the Councils”).  The Councils claim that the statute expressly limits itself to particular development proposals.

Moreover, the Councils submitted that a “planning area” as defined in the Act, does not include County Councils such as Essex, Oxfordshire, Hertfordshire,Surrey, Buckinghamshire and Northamptonshire.  They are non-qualifying Councils for the purposes of the Plan.

 The NLWA supported the Councils and added that in order to demonstrate that the duty was engaged in relation to areas outside London, it would be necessary to establish that policies for development or use of land would have a significant impact.  No evidence has been produced to demonstrate such an impact.

Following the inspectors statement of the law he goes on

I agree with the Councils that S33A does not state explicitly that waste management is a strategic matter.  Nevertheless, the National Planning Policy Framework (NPPF) includes “the provision of infrastructure for …, waste management, …” as one of  the strategic priorities for the area in the Local Plan. (para 156)  In addition, the NPPF states (a) that “local planning authorities should work with authorities and providers to assess the quality and capacity of infrastructure for … waste … and its ability to meet forecast demands; …” (para 162); and (b) “Public bodies have a duty to cooperate on planning issues that cross administrative boundaries, particularly those which relate to the strategic priorities set out in paragraph 156.” (para 178)  Therefore, I consider that waste management is capable of qualifying as a strategic matter for the purposes of S33A.  Indeed, given that there are extant Regional Advisory Bodies which have been created to examine the regional element of waste management, and that waste which arises in one council area is often managed or disposed of in another, I would say that there is every expectation that waste management should be treated as a strategic matter.

No surprise here.  I would make a distinction between a ‘strategic matter’ under section 33A – which includes ‘sustainable development or use of land that has or would have a significant impact on at least two planning areas’ and the ‘strategic priorities’  which is a statement of national policy of what the SoS considers issues which may have a ‘significant impact’.  But this is policy and not the law and other matters which may have a significant impact will require co-operation even if they are not listed in the NPPF.  There are a few examples, such as coastal zone management.

On the ‘planning area’ issue.

I have had regard to this interpretation of S33A but, in any event, a district council (including a metropolitan district) is defined as a planning area.  Accordingly, at the very least, notwithstanding that waste management is a county matter in a two tier area, I consider that where there is (or could be) a significant impact involving a strategic matter, there would be a duty to co-operate with either the county council or the district council where at least two planning areas were affected.  Additionally, county councils which are waste planning authorities would qualify as a “person” with whom there must be co-operation under S33A(1)(a) because they are the local planning authority for waste management. 

On the argument that no site proposed effects neighbours

this stance ignores the fact that waste which arises in the NLWP area is being exported to be managed elsewhere and the cumulative effect of the policies in the Plan is to perpetuate the pattern. Indeed, as the NLWP acknowledges, “However, even at the end of the plan period, waste will continue to cross boundaries for treatment.”(para 2.31); and “There are no sites for landfill in north London. Historically the area has been reliant on landfill sites outside the region. This reliance will decline as north London’s new waste facilities come on line and waste is treated higher up the waste hierarchy. However, even when greater self-sufficiency has been achieved there is still likely to be a requirement for some types of landfill, particularly for non-biodegradable and non-recyclable waste.” (para 2.32)…

the lack of provision for managing all the waste arising from within north London will result in its continued export, albeit perhaps at a reduced level.  SEWPAG and EoEWTAB have calculated that in 2009 about 480,000 tonnes (t) of household (MSW) and commercial and industrial (C&I) waste was exported from north London to landfill outsideLondon.  The significance of the movements is a matter of judgement.  However, the transport of about 144,000t to Buckinghamshire, 100,000t to Northamptonshire, 71,000t to Bedfordshire, 66,000t to Hertfordshire and 52,000t to Essex, in my opinion, is likely to have a very significant impact on the areas where the waste is received and possibly on the transport routes along which it is moved.  The import of waste could also take up landfill or other waste management capacity which might be better used by locally produced arisings. 

 Accordingly, I conclude that the absence of policies or proposals in the NLWP to manage all the waste arisings and the consequent continuation of the export of waste would be likely to have a significant impact on at least two planning areas by virtue of the waste being managed or deposited in them.  Consequently, the North London Councils have a duty to co-operate with the councils representing the “planning areas” in which the waste would be managed or deposited. 

I note the claim by the NLWA that the NLWP is based upon the apportionment in the London Plan, that the London RTB has engaged with representatives from the South East and the East of England and that there is no need to repeat the engagement process.  However, the London Plan was prepared before the coming into effect of S110 of the Localism Act and I do not consider that the Councils are absolved from the duty to co-operate as described in the 2004 Act and the NPPF.

I agree with all of this apart from the last paragraph.  I find this very difficult to square with the findings of the BANES inspector following legal advice that the duty does not apply retrospectively.

In London Boroughs effectively grant the GLA/Mayor of London agency power to act on their behalf on negotiating strategic waste apportionments outside London.

The inspector did not once cover the powers and duties of the GLA/Mayor of London on waste planning and development plans.  To my mind that is a major omission because if the Localism Bill intended to change these and require regional apportionments to be argues twice then it would have amended the 2002 GLA Act, it did not.   I find it ridiclous to argue that these should be argued twice because if in a joint waste plan these did not pass the ‘general conformity’ test they would be unlawful.  The inspector here then is arguing that the Boroughs should place themselves into a deliberate position of non-conformity.

North West London Waste Plan Inspector Seeks DTC submissions

Following the suspension of the hearings the Inspector has issued a note on the duty and given parties two weeks to respond.

You might recall this is the case whether one joint plan making body was unknown to another joint body who did not know about the first body.

It seems to me pretty clear this is a process issue.  You cant have a duty to cooperate without a clear national database of plan making bodies and statutory consultees (of a greater scale than a single district).  Information is prior to consultation, and consultation is prior to cooperation.  You cant be accused of not cooperating with your long lost sister you didn’t know existed.  Same here.

Pickles approves key ‘Prematurity’ case after Previous Refusal – Edge of Lytham St Annes #NPPF

The SoS has permitted and outline application for 1.150 dwellings, a scool and a 34 Ha park on the edge of Lytham St Annes on a site not allocation in the local plan. together with an M55 link Road serving it (part of which would be in the Green Belt).  This was a key site with history regarding Pickles Policy on Prematurity.

It is the first major test of the application of the NPPF policies on prematurity, housing supply and greenfield site protection.

The SoS in agreeing with the inspector found that Fylde Borough only had a 1.4 year housing supply, the core strategy would not be in place before 2014 (from my database it is the slowest in the country) and this was the only practical site to meet housing need.  So the approval was not surprising.  What is interesting though is that the site is Green Belt and Pickles had previously refused on prematurity grounds (which was quashed) and so the way the case is argued and issues balenced is of particular interest.

Key to the understanding of the site was how the scheme would help deliver a M55 link road supported by the County. The appeal for this was conjoined following a direction preventing them approving it without SoS approval.  Also a previous SoS approval decision had been quashed in the courts (for 350 dwellings on part of the site only).  Pickles had previously refused that scheme on prematurity grounds.  This decision was quashed following the CALA case as the SoS had given little weight to the RSS.

The local council opposed the proposal on grounds of poor connectivity to the town, prematurity and inappropriate development in the Green Belt.

The key findings were

the Secretary of State agrees with the Inspector (IR413) that reliance on (protection of countryside) policy to prevent the appeal proposal would thwart the national policy requirements that, where possible, applications should be approved where plans are out-of-date and that local planning authorities should consider favourably applications for housing where they are unable to demonstrate an up-to-date five year supply of deliverable sites. These requisites have recently been reinforced in the NPPF, and the Secretary of State therefore gives little weight to the fact that the appeal site is not allocated for housing in the LP – especially having regard to the agreement between the appellants …that there is currently only a 1.4 year supply of housing land in the Borough against RS requirements.

the Secretary of State agrees with the Inspector’s conclusion…that the appeal scheme should not be refused on prematurity grounds. In particular, the Secretary of State agrees with the Inspector (IR419) that, as it is likely to be at least the end of 2014 before the Core Strategy could be produced, FBC’s future intentions at this stage can be no more than speculation with no evidence that St Annes would not continue to be the principal focus for housing development in the future. He also agrees with the
Inspector that, while permitting the appeal scheme would pre-empt decisions on revised settlement boundaries and on the release of agricultural land, these need to be balanced against the ability of the appeal scheme to secure the implementation of the Link Road, the fact that Queensway is the onlylocation where major housing for St Annes could be accommodated and the fact that there is no substantive objection to the appeal scheme on the basis of impact on character and appearance.

the Secretary of State agrees with the Inspector’s conclusion ..that, although greater connectivity would have been desirable and the shortfall is a negative to weigh in the overall balance, it is not so serious as to be an overriding objection to the appeal scheme.

the Secretary of State agrees with the Inspector that the Queensway scheme provides – through the commitment to funding in the Unilateral Undertaking (UU) – the only realistic means by which an important beneficial road scheme could realistically come to fruition in a timely manner

the Secretary of State has had regard to the guidance in the NPPF that local transport infrastructure which can demonstrate a requirement for a Green Belt location is not inappropriate in the Green Belt provided it preserves the openness of the Green Belt and does not conflict with the purpose of including land in the Green Belt. However, as the Secretary of State agrees with the Inspector both the T5 road (which forms part of the Queensway appeal scheme) and the M55 Link Road scheme would reduce the openness of the Green Belt and, in the case of T5, would reduce, to a limited degree, the separation of St Annes and Blackpool, he also agrees that both road schemes would be inappropriate GreenBelt development. He therefore further agrees with the Inspector that it is necessary to consider whether the substantial harm by reason of inappropriateness and any other harm is clearly outweighed by other considerations so as to amount to the very special circumstances necessary tojustify these road proposals….he agrees with the Inspector that the ability of the Queensway appeal scheme to fund the provision of the Link Road (whose provision would itself result in considerable planning benefits) and to make a positive contribution to housing provision are very significant and weighty considerations in favour of both schemes. He therefore agrees with the Inspector that they clearly outweigh the totality of harm of inappropriate Green Belt development together with the other harm identified, and he is satisfied that very special circumstances exist to justify the use of Green Belt land for the construction of the road schemes.

The SoS and Inspector considered that despite the inquiry taking place pre NPPF approval

He considers that, for the most part, the issues raised in relation to the NPPF cover those already rehearsed at the inquiry.

This is certainly true of Green Belt issues it would have been inappropriate development before and now is conditionally innappropriate development and the weighing and balancing of Green Belt issues would have been the same.

What does matter though is the new (formal) prematurity policy as opposed to the previous make it up as one goes alonmg policy.  This new national policy has led to a different decision.

This case circumstances could not have been a worst one for arguing against this Green field site.  An infmaously low LPA in terms of plan making, no alternative site and no Brownfield site alternative as a consequence.  None the less the casual dismissal of the local plan policy protecting as countryside and no mention at all of the NPPF section (paper thin though it is) on protection of the intrinsic value of the countryside is shocking.

Surely the SoS should have used more considered tones about weighing and balancing of issues even if the end result would have been the same.  The tone of the decision will give concern to countryside campaigners, what for example if there was a case with 3.5 years supply, a plan examination in 2012 and clear alternatives?  The risk is that the weak wording of the NPPF on countryside protection will lead to cases of ‘automatic’ land release when there is no 5 year supply even in cases where there is no clear cut case this is the best site?  Also an issue is how could the SoS come to a decision at all over housing issues if he had abolished the RSS in a case like this where the LP was years old and its replacement years away?  One suspects that the SoS has woken up to the fact that from a housing perspective it is rather useful not to rush to revocation at bit puts pressure on LPA to draw up top date local plans.

 

Medvedev suggests ‘total ban on using old construction models and methods’ in Moscow Expansion

President of Russia, Symposium of Moscow Expansion Competition Today

Dmitry Medvedev held a meeting to examine and discuss the concept for expanding the Moscow City boundaries.

Last July the President made the proposal to expand the city’s territories and gave the relevant instructions to the Moscow City and Moscow Region governments.

Speaking at the meeting, Mr Medvedev stressed that Moscow’s development must resolve a number of objectives, including better housing and living conditions for the city’s 11.5 million people, increasing Moscow’s contribution to the country’s innovative development, moving government and federal agencies to the new city districts, and boosting Moscow’s role as an international financial centre and one of the world’s tourism capitals.

* * *

PRESIDENT OF RUSSIA DMITRY MEDVEDEV: Good afternoon,

We are here today to discuss the Moscow Agglomeration development, including with respect to developing an international financial centre.

I remind you that I made the proposal last July that we expand Moscow’s boundaries and move a sizeable share of government bodies to the new districts. I think the Moscow City Government and the Moscow Region authorities have worked productively since then to find optimum solutions for bringing within the Moscow city boundaries new land of 148,000 hectares in total. Moscow will increase almost 2.5-fold as of July 1 this year.

As the region with the biggest population in our country, Moscow has to move with the times and develop. The capital has always played a crucial part in attracting and introducing new knowledge and technology. The city’s expansion and growth have gone hand-in-hand with many of the key development stages in our country’s history. In the 1930s, the industrialisation underway around the country brought new plants and factories to Moscow too. In 1961, the city extended its boundaries to the Moscow Ring Road. This helped to dramatically ease the housing crisis the city faced back then and laid the foundations for the Moscow agglomeration and the development of satellite towns and science hubs such as Zelenograd, Korolev, and Troitsk, where we are today.

In our decisions on this latest expansion of Moscow City territories, we have not only taken into consideration past experience but also sought to address a number of top priority tasks. What are these tasks?

The first of course is to be able to offer Moscow’s 11.5 million residents a more comfortable living environment. On many counts Moscow is certainly not a leader when it comes to quality of life, and the pace of development is slowing in some areas. The city has become densely built up over the years, but housing nevertheless remains a problem, with per capita housing space at one of the lowest levels in the country – 19 square metres per capita as compared to a national average of 23 square metres per capita. There is also a huge problem of traffic jams.

Moscow’s territory has increased by almost 20 percent over the last 50 years and came to 107,000 hectares before the decision to expand the city limits. But over the same time, the city’s  population has almost doubled, rising from 6 million to nearly 12 million. Moscow today is one of the most densely populated big cities in Europe and the world with 11,000 people per square kilometre. For comparison, Berlin has 4,000 people per square kilometre, and Paris, London, and New York all have less than 7,000 people per square kilometre. This was one of the main reasons, perhaps the biggest reason, why we needed to make this decision.

The city’s new areas must become home to comfortable residential districts, offices, hotels, parks, and sports facilities. Let’s not forget that Russia will host the football World Cup in 2018. I propose that we look at the possibility of establishing one of the training bases for the participating teams in the new city territories.

Let me say too, that these new areas must not turn into anonymous dormitory suburbs of the kind that Moscow already has in plenty. I propose that we look at a number of ideas, including the possibility of a total ban on using old construction models and methods in the new territories. Obviously, priority in the new areas should go to developing low-rise construction. We need to get the leading global architectural companies involved so as to design our projects to the latest European standards. The Government has until May to get all of the needed documents ready. I hope that Moscow’s experience here will become a model for other cities to follow in developing a modern urban living environment.

The second task we need to address is that of increasing Moscow’s contribution to our country’s innovative development. Moscow must set the standards for a good investment climate and quality environment for developing the investment we need in order to support and advance our innovative development. This requires us to modernise our scientific and industrial potential and develop innovative infrastructure. It is for this reason that the Skolkovo innovation centre and the Troitsk science hub will come within the new city boundaries.

Also very promising is the idea of building big university and medical research centres in the new areas. Like Moscow’s other universities and hospitals, they will be not just local, but national centres serving the whole country.

I also stress the point that building this new Moscow should be done primarily by the city’s own people – we have enough people after all in Moscow and the Moscow Region – and not by bringing in migrants en masse.

Third, plans are being drawn up for moving government and federal agencies to the new territories. We need to do this for a number of reasons, including in order to free up Moscow’s historic centre from the large number of state bodies taking up space there. I want this work to proceed without delay. All of the main decisions on this matter need to be taken before the budget drafting is completed this year, so as to be able to start making the plans this year.

It is also important to ensure that the new territories have good transport links to the city centre and the airports. We will therefore begin reconstruction of Moscow-Kaluga highway this year and also develop a project for traffic-light free roads running into central Moscow.

Finally, the fourth task is to boost Moscow’s role as an international financial centre and global tourism capital and venue for congresses, exhibitions, and business events. These are all things that we need to work on very attentively.

In conclusion, let me stress once more that our task is to turn the whole greater Moscow area with its nearly 20 million people into a liveable and competitive megapolis that will be the development engine for the entire city and surrounding region and the neighbouring regions too.

Do the Coop ‘Death Hubs’ Require Planning Consent? #planorak

Lets predict some answers arising from a public outrage and tabloid headlines in advance.

Tonight Channel 4 will screen a programme called ‘undercover undertaker’ on coop funeral care.  It will show that whilst relatives think that bodies of its loved ones are stored in its 900 funderal homes in the main they are stored in one of 150 ‘hubs’ where bodies are ‘stacked liked tv sets’. Which

contained a garage with a fleet of limousines and hearses, storage for dozens of coffins, and a large refrigerated area – the mortuary – with rack upon rack of bodies, some of them uncovered.

When families asked to see their loved ones, the body would be taken back to the funeral home, a journey of up to 30 miles

Now questions will be asked, we didnt know we were living in an area where bdoeies were stored.  Does this need planning permission, most certainly yes.

DETR certainly felt so in 1999  Hansard HC Deb 11 June 1999 vol 332 cc961-8  Nick Raynsford in answer to a parliamentary question.

Following a review of the UCO in 1991, the previous Government decided that funeral directors’ premises should remain in the shops class. They felt that when people have to cope with bereavement, they should expect to be able to contact an undertaker in the locality. I agree with this view…

We know that some would like funeral uses to be removed from the shops class of the UCO. Difficulties have, on occasion, arisen when shops in residential areas have changed to that use. Clearly, the siting of such businesses close to neighbouring developments such as old people’s homes can be a delicate matter and may cause disquiet. However, those are isolated instances and we have no evidence that there is a widespread problem that would justify removal of funeral directors’ rights under the UCO…..

While funeral directors’ premises fall within the UCO, funeral directors’ chapels of rest are generally treated separately. If I may lapse into Latin, the technical term is sui generis, that is, outside the use class system. Mortuaries would also be sui generis unless ancillary to some other use of land, such as a hospital or clinic. That is because such activities are more likely to have an impact on local amenity and generate concern. Sui generis uses require specific planning permission for any changes to or from that use. A planning application would, therefore, be required for a new chapel of rest or a mortuary.

These Death Hubs from the Coop however are more than mortuaries also containing warehousing activities.  The issue then is whether they are a hybrid B8/Mortuary use or a mixed use. The caselaw dependes on how scattered and intermingled the uses are but as the mortuary is a clearly self contained unit my guess is it is a hybrid use and so change of use is required for the change of the whole planning unit (the warehouse) to a hybrid b8/mortuary use.  Of course the 4 year rule applies.  So a lot of CLUDs will be going in I imagine.

The whole ‘death hub’ story has given me a very good idea for a vampire movie.