National Infrastructure Plan hides New Major Round of Planning Reforms

The NIP hides away on page 15

The government will continue to work to ensure that the planning system does not act as a barrier to vital infrastructure investment. It will:
• continue to refine the Nationally Significant Infrastructure Projects (NSIP) regime as lessons are learned from projects going through it, including:
• launching an overarching review of the NSIP regime, while freezing planning application fees for the NSIP regime for the remainder of this parliament
• having regard to the designation of a ‘Top 40’ priority investment when considering applications for the NSIP regime
• providing policy certainty and confidence for the transport sector through the publication of a National Networks National Policy Statement (NPS)
• reform the judicial review (JR) system to tackle delays to infrastructure delivery and reduce the impact of meritless claims; it will establish a specialist planning court with set deadlines to accelerate the handling of cases, introduce legislation to ensure that minor procedural claims are dealt with proportionally and allow appeals to ‘leapfrog’ directly to the Supreme Court in a wider range of circumstances
• take further steps to address delays at every stage of the planning process and incentivise improved planning performance, by:
consulting on mechanisms to speed up Local Plan production, including a statutory requirement to put local plans in place
• addressing delays associated with the discharge of planning conditions
• consulting on proposals to reduce the number of applications where unnecessary statutory consultations occur
• ensuring that households benefit from developments in their local area; building on the measures it has already put in place (including the neighbourhood funding element of the Community Infrastructure Levy), the government will work with industry, local authorities and other interested parties to develop a pilot passing a share of the benefits of development directly to individual households

Further details are given on page 100

Town and Country Planning System
7.41 The Government is taking steps to address delays at every stage of the planning process and incentivise improved planning performance.
7.42 Local Plans provide certainty for developers, while supporting locally-led sustainable development. Three quarters of planning authorities now have a published Local Plan, but further progress can be made. The government will consult on measures to improve plan making, including introducing a statutory requirement to put a Local Plan in place.
7.43 Delays associated with the discharge of planning conditions can hinder the effective delivery of development. The government will legislate so that where a planning authority has failed to discharge a condition on time, it will be treated as approved, and will consult on using legislative measures to strengthen the requirement for planning authorities to justify conditions that must be discharged before any work can start.
7.44 To prevent delays for applicants, the government will consult on proposals to reduce the number of applications where unnecessary statutory consultations occur, and key statutory consultees will commit to a common service agreement. The government will also pilot a new scheme to provide a single point of contact for cases where a point of conflict in advice cannot be resolved locally.
7.45 The government wants to ensure that households benefit from developments in their local area. Building on the measures it has already put in place at the local authority and community level (including the neighbourhood funding element of the Community Infrastructure Levy, ‘Community Benefits’ in the energy sector and the New Homes Bonus), the government will work with industry, local authorities and other interested parties to develop a pilot passing a share of the benefits of development directly to individual households.

This will be the third round of reforms, The NPPF round one, the use class order changes round two.  The HBF have been lobbying for the deemed conditions reform.   All conditions must have reasons and every DM planner knows the common law tests used to determine whether grampian/negative conditions are appropriate (or they should) so it is difficult to see what use this would be.

The statory duty to have a plan is interesting, Scotland has it and noone should fear it but it makes no difference as it isn’t enforced.  It would only bite if others could claim funds and an EIP place to submit their own plan if an LPA was very late.  The Government quoting stats on published plans is meaningless when most published plans now fail the DTC or are found unsound at first bite.  

Any monies passed to individual households would need to come off either profits or CIL/Infrastructure funding.  It is a daft idea designed to enrich already well off people living on the edge of towns and villages at the cost of society as a whole and will do little to dissipate opposition.  There is no system of compensation/betterment for changes to land values, their is no right to a nice view, and if there is to be any such system it should solely come from a levy on betterment.

‘Don’t Panic’ – its Duty to Cooperate Chaos in Dad’s Army Land


With the Hastings/Rother decision and the Mid Sussex DTC decision it seems clear that one area where the Duty to Cooperate is having most impact is Dads Army Land – the Sussex Coast.  And as it should be because the new South Downs National Park and the High Weald AONB mean that the tightly packed towns here have little room to expand without becoming the kind of sprawl you find around Seaford and Peacehaven.  So now Rother finds it has to consider a tripling of its housing targets to accommodate overspill from Hastings.  That is without even considering overspill from Wealden District (Which the inspector said needed to undershoot because of european sites – even on the basis of the now revoked SEP).  There is one big problem .  Rother is 80% AONB, and what is left is Romney Marsh (flood risk area and European sites, let alone areas protected because of proximity to Dungerness), or urban areas, ancient woodland or areas already allocated for major expansion of Bexhill.  So where is it to go?  Similarly the Sussex Coastal Towns SHMA requires an overspill of over 7,000 dwellings in the rest of West Sussex.

Compared to the SEP (South East Plan) Rother now has to consider an additional 9,000 dwellings.  Those dwellings were allocated away from the District in the first place because of its constraints.  There  is now likely to be around 15k extra dwellings needed to be allocated arising from trend based need from Lewes, Wealden and Chichester considered together.  You can add to that the 7,000 extra dwellings arising from the West Sussex SHMA overspill and a figure of overspill from Crawley, before you even consider the impact of any extra runway at Gatwick.  Given that Rother patently wont be able to handle this extra growth where will it go?  The obvious answers are further growth at Ashford (which was exactly the South East Plan Plan) and expanding Paddock Wood to New Town Scale.  Similarly in West Sussex you could deal with the spillover with a new settlement, I don’t particularly like the idea of a road based one around the A23 (the New Country Town Proposal)  and think the bolder and better approach is to ‘do a Milton Keynes’ and have a rail based corridor with a new station between Burgess Hill and Hassocks even if it means convergence of the towns, and/or between Burgess Hill and Haywards Heath.  After all no-one these days bemoans the convergence of Wolverton and Bletchly do they?  The best here would be the enemy of the good, and a proper masterplan led approach can ensure proper woods, green wedges and country parks at the most visually sensitive locations in those gaps.

So where next for these authorities?  They have no choice but to cooperate now if they want haphazard appeal led growth in juicy villages (from the developers point of view).  They will have to consider alternatives and SEA them.  How if this any different from the process undertaken for the South East Plan?  Not all all  really, LPAs are having to reinvent the wheel after an interregnum of three-five years (as worked basically stopped two years prior to the election due to Spelman’s letter).   The South East Plan process was reactive, the government set bigger targets LPAS called foul and it was all fought out at the EIP.  What is desperately needed here is vision, a proper plan-led design led study on where in Sussex and South East Kent to take an overspill of around 35,000 swellings over 15 years and likely 70,000 over 30 years.

Liz Kendall MP has siad the DTC isnt working.  Clearly these decisions show that it is but boy it is watching strategic planning in extreme slow motion, if it wasnt slow enough already.  Labours ‘right to grow’ will do little as here it is not an issues of adjoining areas because of landscape designations but anywhere within sustainable commuting distance.   How would the ‘right to grow’ work?  If the same examination driven way as the DTC it would still be strategic planning in extreme slow motion.

For Private Bowls and Captain Pickles though all they seem willing to do is hold back the invading hordes of electors, whom they have pissed off everywhere now not just in growth areas, with the policy equivalent of broom handles and pitchforks.

No Gary Marsh Expectations on the Duty to Cooperate have Not Changed

Planning Resource has a statement by Mid Sussex on the news of their DTC fail which we broke earlier today.

In a statement, Mid Sussex District Council said that Councillors are “frustrated” by the inspector’s verdict. The statement said that the council will carefully consider the inspector’s comments and will do whatever is required to secure a successful local plan as soon as possible…

“Many residents left the last hearing feeling the odds were stacked against the district council in its attempt to agree a local plan in the face of opposition from those with vested interests, such as developers.”

Gary Marsh, Mid Sussex District Council’s cabinet member for planning, said: “I feel we have been unfairly treated and it would seem that the expectations about what is required by councils under the duty to cooperate have changed in recent months and we will be making that point to the inspector.”

Anyone who has read of the many DTC fails on this site will know that they have not changed.  Rather some authorities like Mid Sussex have pursued a political agenda, I presume in the face of officers advice, that they are likely to fail.  Indeed the writing has been on the wall for Mid Sussex since Brighton sent them a formal DTC notice to take overspill need Exactly One Year Ago.

How ridiculous now to blame ‘vested interests’  aren’t those living in Brighton, Crawley, Worthing, Littlehampton etc.  living in overcrowded accommodation every bit as much as legitimate a local interest as someone living in Haywards Heath or Hassoks?

But we have seen many times ridiculous bad tempered statements by council leaders on this website, sitting Canute like hoping against hope that the planning system and housing need will somehow one day go away before their plan gets found out.

Mid Sussex Fails Duty to Cooperate for Failing to Cooperate with Crawley and Sussex Coastal Districts

Just yesterday I was discussing how little sense it made to plan for the West Sussex coastal district separate from the north of the county, and today I was sent through the Mid Sussex decision on just that.  The most important so far I think as it deals with no just cooperation within one MHA but between two overlapping and closely related HMA, that is Gatwick and Sussex Coastal. The underlying issue of course is whether Mid Sussex should have to plan for a new town to take Sussex Coastal overspill.  Brighton have formally requested Mid Sussex to meet some of their need and Crawley. Adur and Lewes may do so in the future.  Now it seems inevitable they will.

The response from the four coastal local planning authorities (submitted by Adur and Worthing Councils) concludes by suggesting that I should take a flexible approach and proceed with the examination ‘as this would enable the housing issues to be considered in detail’. Similarly one participant at the hearing session suggested I could adopt some form of sliding scale that would enable me to conclude that, although in his view the Council had not fully met the requirements of the duty, it had made sufficient progress to be deemed acceptable. There is no room for such flexibility in the legislation – either the requirement has been met or it has not and it is on that basis I have considered the evidence.

At the EM it was suggested that if the submitted District Plan (DP) (which covers the period up to 2031) were to be found sound, then it should be subject to an early review, which would be based on a thorough assessment of cross-boundary issues. However, the legislation on the duty does not provide for such an approach to be followed….

.The Council did not establish a robust framework within which ‘co-operation’ could be monitored – for example in terms of frequency, issues to be addressed, outcomes to be anticipated and bodies to be involved.
…the Council appears to have taken a rather ad hoc approach and relied on existing established meetings to give consideration to the duty. The Council argued that there is no specific requirement in the legislation to take a structured approach, and that is correct. However, the Council needs to demonstrate co-operation, co-ordination and continuous engagement and one way this may be achieved is through a more transparent process that can be appropriately managed and monitored….

In a Report to the Scrutiny Sub Committee for Planning and Economic Development (5th March 2013) entitled ‘Housing Numbers for the District Plan’ (EP31), paragraph 28 confirms that ‘discussions with neighbouring authorities need to continue over the next few months to clarify their
positions and agree mechanisms for addressing cross-boundary issues where practical and consistent with the strategy and objectives of the District Plan’.
Firstly there is no record of any significant ‘mechanisms’ having been agreed prior to the submission of the DP and secondly the officer appears to be precluding any discussions if they relate to issues that might conflict with the Council’s strategy and objectives of self-containment. Neither of
these factors add weight to the Council’s contention that it has met the duty…

Meetings have been held and doubtless appropriate issues have been discussed but it needs to be demonstrated
that appropriate conclusions have been drawn at those meetings and that the Councils have acted on those conclusions. It is inevitable that there will be difficult issues to address. An example is the situation regarding
the proposed Memorandum of Understanding between Mid Sussex and Lewes Councils, which was drafted over 18 months ago but which has not been signed. This does not indicate that a constructive approach has been adopted.
Has Engagement…

The evidence indicates that a number of local planning authorities in the area will be unable to meet their objectively assessed housing needs in a
sustainable way. Whilst I understand it is not always easy to take an active approach in terms of considering the needs of other local planning authorities and also that localism has a role to play in any deliberations,  those factors should not be seen as a reason to take a back seat and rely on others to seek solutions to cross-boundary problems.

there is no indication in the submitted plan that
serious consideration has been given to the concerns that were voiced. The opportunity was there for the Council to conclusively demonstrate, one way or the other, that it had considered the concerns of nearby local planning authorities and drawn appropriate conclusions. However, there are no significant references in the DP to any cross-boundary issues. The meetings that have been held could not accurately be described as frequent and the evidence does not demonstrate that consideration of cross-boundary issues has been taking place from ‘initial thinking’.

No in-depth analysis of the issues facing the local planning authorities in the area has been undertaken and no robust assessment of how those

issues should be addressed has been prepared. The lack of commitment to seeking a way forward is demonstrated by the lack of progress on the Memorandum of Understanding between Mid Sussex and Lewes Councils.
Therefore in terms of fulfilling the duty I would describe the foundations upon which the approach of the District Council is based, as at best, shaky.

The Coastal West Sussex Strategic Planning Board (which represents Brighton and Hove, Adur, Arun, Chichester, Lewes, Worthing and the South Downs National Park) published, in May 2013, a Housing Study(Duty to Co-operate)12. I am unable to give full weight to the conclusions included within this Study because I have not tested the evidence on which it is based. However, I have no reason to doubt that it provides a reasonably justified indication of the situation because it pulls together
evidence from a range of other studies. This Study suggests that housing delivery over the period to 2031, across the Coastal Housing Market Area, is likely to be at least 20% below objectively assessed needs – equivalent
to at least 495 dwellings a year.

The Council argued that it hasn’t been clearly demonstrated by Brighton and Hove, for example, that it could not accommodate a higher level of housing development than is currently being proposed. I cannot draw a conclusion one way or the other because I have not seen all the evidence
but similarly the District Council does not appear to have made a robust assessment of the situation which it could have undertaken if it had collaborated with Brighton and Hove to seek an outcome of mutual benefit to all parties.

The evidence does not enable me to conclude that prior to the submission of the DP, Mid Sussex District Council gave satisfactory consideration to

meeting the unmet development needs (in particular in terms of housing) of nearby local planning authorities. The requirements of paragraphs 178 to 181 of the National Planning Policy Framework have not been met.
Therefore it is with regret that I must conclude that the Duty to Cooperate has not been met. As the Plan has not been based on effective joint working on strategic priorities and because currently there is insufficient evidence to demonstrate that the DP has been positively
prepared, there is also the risk that the Plan could be found to be not sound….

It must be emphasised that this does not mean that Mid Sussex should be expected to accommodate additional growth – that is not necessarily the case. What it does mean is that the Council should give detailed and rigorous consideration to the development needs of nearby authorities and draw robust conclusions with regards to whether or not any of those needs could be met in a sustainable way within the District, bearing in mind the environmental and other constraints that exist.

I understand that this is not the conclusion that the Council would have wanted and that there may be consequences in terms of the Council being unable to meet its 5 year housing land supply requirement. Nevertheless this cannot outweigh the need for effective joint working. I must advise the Council to withdraw the Plan, undertake a more rigorous assessment of cross-boundary issues and in so-doing ensure that it meets the requirements of the Duty to Co-operate, carry out the necessary consultation and re-submit the Plan as soon as possible.

Mevagissey Parish Council Successfully Challenges AONB Housing Permission for Failure to Consider Alternative Sites

Long awaited case and a predicatible victory


    The planning application of course required the Council to weigh all material considerations; but, in particular, it required the Council to consider, in the light of the relevant policies, the tension between the local need for affordable housing and the impact of the proposal on this location within the AONB. One primary ground of challenge is that the Council’s approach to this task was not in accordance with the relevant policies and was therefore unlawful…

This debate did not apparently include any consideration of alternative sites: none is recorded in the minutes….

the Council accepted that the grant of permission “failed to adequately specify what exceptional circumstances weighed in favour of granting permission such as to outweigh the impact of the development of the AONB”. …

The Developer’s stance, briefly put, has been to deny that the Council erred in its approach to the relevant AONB policies (Ground 1), and to aver that the reasons given for the grant were adequate (Ground 2)….

    Where an application is made for a development in an AONB, the relevant committee or other planning decision-makers are required to take into account and weigh all material considerations. However…the NPPF places the conservation of the landscape and scenic beauty of an AONB into a special category of material consideration: as a matter of policy paragraph 115 requires it to be given “great weight”, and paragraph 116 of the NPPF requires permission for a major development such as this in an AONB to be refused save in exceptional circumstances and where it can be demonstrated the proposed development is in the public interest. In coming to a determination of such a planning application under this policy, the committee are therefore required, not simply to weigh all material considerations in a balance, but to refuse an application unless they are satisfied that (i) there are exceptional circumstances, and (ii) it is demonstrated that, despite giving great weight to conserving the landscape and scenic beauty in the AONB, the development is in the public interest. The committee may of course depart from the guidance (see paragraph 41(iv) above), but (i) the Planning Committee certainly gave no reasons for doing so, and (ii) as I have indicated above (paragraph 49(i)), Mrs Townsend did not seek to argue that they did, in this case, deliberately and informedly depart from the guidance
    It was the Planning Committee’s duty to exercise their own judgment on the application. In doing so, they were of course entitled to come to a different conclusion from that of the officer. However, they could not do so without, in their summary reasons, (i) indicating that they had correctly identified, understood and applied the relevant policies, notably paragraphs 115-116 of the NPPF; and (ii) explaining, if but briefly, why they had come to the conclusion they had, and thus why they considered the officer’s conclusion wrong.

[The minuted reasons] suggests that the Committee found that the need for affordable housing outweighed the harm to the AONB that the development would cause, on the basis of a simple balancing exercise. However, they were not performing a simple balancing exercise. They could only approach the application on the basis of the paragraphs 115-116 of the NPPF: they had to find exceptional circumstances, and then, giving the conservancy of the AONB great weight, determine whether other factors (including of course the need for affordable housing) meant that the public interest was nevertheless in granting permission for the development. … the words in the summary grounds…suggested – and, in my view, very strongly suggested – that they had ignored the requirements of paragraphs 115-116 of the NPPF, and adopted a wrong approach.

one can properly assume from that experience alone ….that they had in mind, and understood and applied, the requirements of paragraph 115-116 in this particular case; and properly addressed their minds to the scope for alternative ways on which the accepted need for affordable housing could be met in Mevagissey by developments on alternative deliverable sites that would do less harm to the landscape and scenic beauty of the AONB.