Courtesy daily mail – speechless
Courtesy daily mail – speechless
The planning section
The Home Builders Federation (HBF) noted that several EU requirements impact heavily on the home building industry, including those relating to Environmental Impact
Assessments, Strategic Environmental Assessments, Habitats and Water. It argued that the cumulative cost on development of fulfilling requirements in the planning system stemming from the EU was disproportionate to the environmental benefits provided.
The HBF considered that the economic benefits of development were missing from the debate on planning impacts as environmental aims would always trump the economic arguments, even though, for example, in its view providing sufficient housing is as important as protecting natural habitats. The HBF gave the example of a development where offsite translocation was refued and the methods to protect newts onsite cost £200,000-£300,000 (not including interest or loss of return on the proposed construction) in the context of a peak count of 23 newts. It also noted that in some areas 85% of Community Infrastructure Levy is required for mitigation of the Habitats Directive 92/43/EEC, leaving little funding for schools and roads, commenting that this is disproportionate and unsustainable.
The British Property Federation (BPF) also raised concerns about understanding and treatment of the built environment at EU level. They considered that the European Commission could better engage with property owners and investors.HBF argued that in some cases, for example Ashdown Forest and the Thames Basin Heaths Special Protection Areas, no new planning permissions to build homes were granted for a number of years due to the cumulative requirements of EU regulations. They claimed that EU legislative requirements play a significant part in adding about 18 months on to the normal cycle of an application and this is costly to industry.
EDF Energy (EDF) agreed that while the Habitats Directive 92/43/EEC rightly sets out species and features that should be protected across Europe, EDF understood it to specify what EDF argued was a novel burden of proof of no harm, implying in EDF’s opinion an absolute requirement to protect and preserve irrespective of cost. In EDF’s view this does not fit well with the rest of EU environmental law and it continues to generate a growing legal case load, without necessarily delivering any greater level of environmental protection in the final outcomes.
From the perspective of small firms the Federation of Small Businesses (FSB) stressed that the focus should be on ensuring that SMEs could interact with a streamlined and responsive planning and development system. They considered that the current proposal for the revision of the Environmental Impact Assessment Directive 2011/92/EU would have serious consequences for the UK’s small firms and limit their ability to contribute to economic growth.
The Explanatory Memorandum on the European Commission’s proposal to review the Environmental Impact Assessment Directive referred to research undertaken for the European Commission which identified that across Europe assessments usually take 6-12 months to complete and account for an average of 1% of a total project’s cost. European Commission, Commission Staff Working Paper, Impact Assessment Accompanying the document, Proposal for A Directive of the European Parliament and Council Amending Directive 2011/92/EU on the Assessment of the Effects of Certain Public and Private Projects on The Environment (2011).
There has not been any research on the costs of undertaking Strategic Environmental Assessments of plans or programmes in the United Kingdom. Research by the European Commission suggests the assessment of regional and local land use plans may increase the cost by 5-10% and there is no reason to believe the costs are any less in the United Kingdom
Habitats and Nature Protection
Civil society and NGO groups did not have a single view of the appropriate level for action on nature protection, although environmental NGOs argued strongly for the need for EU level protection and cited benefits resulting from the Habitats Directive 92/43/EEC.
However, several of these same groups, also commented that the nature of the legislation itself left very little flexibility for Member States to implement in a sensible, proportionate manner.
Participants at the nature workshop and the workshop in Brussels, and the Royal Yachting Association, argued that nature protection has a very local dimension and should involve a strong element of local decision-making.
WWF and the RSPB considered that their evidence showed that EU competence had delivered long term improvements to habitat protection, and argued that it would be impossible for any individual Member State to deliver the environmental, social and economic benefits which had been conferred by EU competence. Bodies such as the WT and WWF argued strongly that designation and protection at EU level was the only feasible way to protect migratory or marine species in particular, giving the Brent Goose as a case study and citing the fact that the number of protected UK marine sites increased from three to 100 after the Habitats Directive 92/43/EEC came into force. They also commented that in the case of the Dogger Bank Special Protection Area, the Habitats Directive 92/43/EEC provided a common framework for ecological assessment across the territories of three Member State, meaning developers did not have to negotiate three different sets of Member State domestic regulation.
There were a number of respondents who said that more flexibility was needed for Member States to decide their own priorities. The British Ecological Society commented that it could be in the national interest for the UK to have more flexibility in implementation, particularly around building and planning, to free up resources to focus on other rare species. The British Ecological Society and the HBF specifically mentioned that greater flexibility around relatively populous species such as the great crested newt would be welcome, and argued that this would provide greater cost-effectiveness by allowing the UK to focus on other species that are nationally or internationally rare. However, the British Ecological Society commented that some EU scrutiny would need to remain to ensure internationally protected species were not undervalued.
The British Ports Association concluded that the current arrangements for regulation in this area were about right, but was strongly in favour of carrying out regular reviews akin to the Government’s 2012 Habitats Directive 92/43/EEC implementing review, focussed on ensuring that commercial interests were adequately balanced against environmental interests, and ensuring that the recommendations of such reviews were followed through.
Environmental Impact Assessment and Strategic Environmental Assessment
Views on the right level of action for environmental impact assessment and strategic environmental assessment were mixed. IEEP, on behalf of WT, WWF, RSPB and FOE and the Wildfowl and Wetlands Trust, noted the benefits of EU level action for protecting the environment, particularly species that migrate across national boundaries and in facilitating a level playing field for developers across the EU (see Dogger Bank Case study for an example of its operation). English Heritage and the Institute for Archaeology argued that EU competence through the Environmental Impact Assessment Directive 2011/92/EU and the Strategic Environmental Assessment Directive 2001/42/EC is important for the protection of the historic environment which is otherwise almost exclusively protected at domestic level. They believe that this has resulted in the historic environment being perceived to be of lesser importance compared with issues dealt with primarily at EU-level.
By contrast, a review of subsidiarity has recently been carried out by the Dutch Government which concluded that EU legislation in this area is highly detailed, with too
much of an emphasis on means rather than ends. In the view of the Dutch Government this can have an unwanted effect on national approaches to implementing and costs. The Dutch Government concluded that decisions should be made at Member State level. Similar comments were made by some respondents to this review, including UK Coal and British Aggregates, who felt that the requirements of this EU legislation were burdensome and disproportionate. The HBF argued that following the subsidiarity principle, where issues are local (such as land use planning and its environmental impact) action should be taken at the national level.
The EU’s requirements for EIAs are currently under review and a number of respondents expressed support for the UK Government’s efforts to secure less prescriptive
requirements in future. The British Aggregates Association, Energy UK and the Environmental Services Association (ESA) raised various concerns that that current
proposals would swing the balance of competence too far towards EU level control and slow down UK planning processes. The ESA considered that the revised Directive would require Environmental Impact Assessments even for small projects which posed no risk to the environment. The Prime Minister’s Business Taskforce on EU Regulation also calls on the EU to drop the new proposals on Environmental Impact Assessments, which it believes may present a barrier to businesses expanding.
The MPA argued that the European Commission’s review of this legislation should aim to introduce greater discretion for Member States, to allow them to focus on those aspects of the environment that are most at threat in their territories.
Attendees at the Northern Ireland workshop considered the SEA Directive to be particularly costly. The Northern Ireland Department of the Environment cited a rise in
the volume and complexity of legal challenges which caused significant delay in bringing
forward new policy initiatives. Participants at the London Workshop One considered the SEA Directive to be too prescriptive for smaller organisations, and noted it took an additional 20 months to go through the Strategic Environmental Assessment process for their waste strategy.
Fjordr Ltd argue that the rules made under the Environmental Impact Assessment Directive 2011/92/EU and the Strategic Environmental Assessment Directive 2001/42/EC saved costs and delays by ensuring developers are prepared for challenges they may face in development. They argued that this prevents loss and damage to significant historic assets, while environmental NGOs welcome the transparency provided by the regulations.
Land Use Planning
The EU has no competence over land use planning except as it relates to environmental matters. Environmental measures may affect town and country planning, but in this case such measures must be subject to a special legislative procedure and must be agreed unanimously by the Council after consultation with the Parliament. EU requirements stemming from environmental directives affect land-use planning in general terms. This includes effects on development, the development process, and the way land can be used, and in doing so they affect how land use planning is undertaken in the UK. There are an increasing number of directives which have implications for land use planning.
The Law Society, UK Coal, British Aggregates, HBF and CBI minerals believed that decisions on the balance of economic and social needs and environmental protection should be dealt with through the national land-use planning system. British Aggregates argued that planning rules should take primacy over EU rules (including those relating to Environmental Impact Assessment, Strategic Environmental Assessment and the Wild Birds and Habitats directives). The Scottish Government also highlighted the tension between EU legislation on habitats and birds, and the Strategic Environmental Assessment Directive, on development objectives in Scotland….
A considerable body of evidence was received from respondents in relation to the implementation of the Habitats Directive 92/43/EEC in the UK. Many respondents felt that differential interpretation of this legislation across the UK, and the implementation choices in the UK, had affected businesses. This was the subject of the Habitats Directive Implementation Review by the Government in 2012 which made several recommendations about how to improve implementation in the UK.
See here. The Vagueness of the NPPF on this issue comes home to roost with most of the main parties at this examination offering conflicting legal opinions.
Peter Village QC on behlaf of the NPPF argues that Hunston mean that the objective need must be met and full and must be met every year, irrectove of onstrstructure constraints/ ‘Liverpool’ in other words.
Morag Eliis on behalf of the councils argues
The Councils note that several Core Strategies have been found sound at Examination include a similar approach to varying housing delivery across their
plan periods, in particular Taunton Deane, Greater Norwich and South Gloucestershire (Inspector’s reports 3 July 2012, 13 November 2013 and 15 November 2013).
Morags argument simply is that ‘need’ in the NPPF means what it says, need. And it is then a matter of policy where and when that need is allocated in line with other NPPF policies.
I agree with the HBF Opinion insofar as it states:
(i) that “full, objectively assessed needs” means what it says; it is a policy-neutral figure;
(ii) that the subsequent application of policy considerations to that figure, which might justify a reduction, is an exercise which must
confine itself to NPPF-derived policy considerations.
However, nothing in the Opinion seems to me to justify the conclusions of lack of soundness or potential unlawfulness.
It seems obvious that Morag is right on this issue. Whatever is the merits of Liverpool or Sedgefield in thsi cae it is a matter of policy judgement not lawfulness. All piss and wind from the NBF on this one.
Defending housing appeals under the NPPF has been famously compared to betting on a three legged donkey by a councillor as the first few months of oits introduction saw an almost 100% success rate on large housing appeals.
But in recent weeks there have been a number of successful defenses, and it is useful to draw some lessons. After all the way to make a real killing at the races is to bet on a three legged donkey and win at long odds.
Residents in Seaton have won an appeal on a Green Wedge site where officers at East Devon had recommended approval. There have also been successful appeals on issues where the NPPF gives specific exceptions to the general presumption in favour of sustainable development.
So here are my rules of thumb of cases where you may be likely to win an appeal.
1) Is it a case where the NPPF gives absolute protection? Such as protected species. Then it is a knockout not only does the presumption nbot apply but the weiging and balencing exercise allows the economic and other benefits of the scheme only to be considered in exceptional cases.
2) Is it a case where the presumption in favour does not apply? The obvious example is Green Belt, there is still a weighing and balancing exercise but there will either be a presumption against (as in Green Belt) or no presumption but strict tests (as for building on flood planes).
3) Is it a case where the NPPF gives relative protection? This includes issues such as ancient woodland, this is no absolute protection, as benefits can exceptionally overide harm but more appeals on this issue have been lost than won. The other obvious case is where the traffic impact of the development causes ‘serious harm’ where the SoS has refused two cases in the last year.
4) Is an up to date local plan submitted with a 5 year+ supply? If so as at Seaton the inspector may judge any current undersupply as temporary as the market will quiclkly (bit not instantly) adjust to any increase in hhousing land through increase consents.
5) Does the scheme cause visual or other harm? The NPPF does not protect bog standard fields but does protect ‘valued landscapes’ if these are protected by policy such as through gaps wedges etc policy then if you can demonstrate 4) above then the odds have swing in your favour.
6) Is a draft neighbourhood plan/pr allocation plan in line with an emerging local plan propose suggesting alternative superior sites? If the local plan is short on housing numbers then you will fall foul of the Tattenhall problem, bit if it doesn’t then the odds have again swung in your favour band you can show you arnt being Nimbey you are being positive loocalists.
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