Fracking to be Restricted in National Parks and AONB

Telegraph – Though touted as a change of policy it simply highlights the normal ‘dower test’ the absence of any real previous guidance of its application to Fracking having led to much uncertainty whether or not the government intended a free for all.  It appears though this is spin to deflect attention away from the massive expansion of licences to be announced today, and the implied threat of Eric Pickles to grant special development orders for exploration wells.

National parks and other areas of important countryside will be protected from fracking, ministers will announce today in a move that will head off anger in the Tory heartlands ahead of the election.

While stopping short of a total ban, the Government will unveil new planning guidance to make it harder to drill fracking wells in national parks and areas of outstanding natural beauty.

In a significant concession, the new rules state that fracking should only be allowed in the most precious areas of British countryside in “exceptional circumstances”.

Matthew Hancock, the new business and energy minister, said that the new measures “will protect Britain’s great national parks and outstanding landscapes”.

It will be seen as a major victory for countryside campaigners, who have repeatedly called for a total ban on shale exploration in the rocks beneath national parks to protect rare wildlife and fragile habitats.

Senior Conservatives had voiced concerns that the push for fracking in key Tory areas in the South East would result in a repeat of the protests seen last year in Balcombe, West Sussex, which resulted in dozens of arrests.

A number of Tory MPs have also pledged to oppose any shale gas exploration in their constituencies.

Sources close to Mr Hancock last night insisted that the new planning guidance does not represent a climb-down.

But one Conservative source described the measures as “tantamount to a ban” on fracking in national parks.

Under the new rules fracking in protected areas will only be approved by ministers if the gas and oil reserves are so large that they are deemed to be of “exceptional” national significance and any impact on the environment can be kept to a minimum.

It raises the prospect of Britain’s fracking industry being focused in the north of England, as fewer potential shale reserves there are situated in national parks.

A spokesman for the National Trust, who have opposed the Government on its planning reforms and expressed concerns over the spread of fracking around the countryside, said: “It’s right that the Government have recognised the concerns about fracking in special places like national parks and AONBs.

“We welcome the new planning guidance which will makes clear that applications should be refused in these areas other than in exceptional circumstances.

“But it’s not just national parks and AONBs that could be at risk but other special places too, which is why we’d like to see this approach extended to nature reserves and other wildlife sites like Sites of Special Scientific Interest as well.”

The Government will today [MONDAY] announce plans to offer up vast swathes of Britain for fracking.

The so-called “14th onshore licensing round”, which will invite companies to bid for the rights to explore in as-yet untouched parts of the country, could lead to thousands of new fracking wells, it is understood.

Fracking involves pumping water, sand and chemicals into the ground at high pressure to hydraulically fracture shale rocks and extract oil and gas trapped within them.

Campaigners had warned that fracking could lead to water contamination and the destruction of important wildlife habitats.

“The new guidance published today will protect Britain’s great national parks and outstanding landscapes. Building on the existing rules that ensure operational best practices are implemented and robustly enforced,” Mr Hancock said.

Mr Hancock wants to speed up the time it takes for companies to get approval to drill for shale gas.

At present firms have to wait around 15 months for permission to drill but Mr Hancock wants to half that ahead of the election.

He added: “Ultimately, done right, speeding up shale will mean more jobs and opportunities for people and help ensure long-term economic and energy security for our country.”

As part of the new planning rules, Eric Pickles, the Communities Secretary, will intervene if a fracking company appeals against a decision by a local authority not to grant a shale gas exploration application.

It means companies will be less likely to bully local communities into granting applications using the threat of legal action.

Lord Ahmad of Wimbledon, a minister in the communities department, said: “Effective exploration and testing of the UK’s unconventional gas resources is key to understanding the potential for this industry – so the Government is creating the right framework to accelerate unconventional oil and gas development in a responsible and sustainable way.

“We recognise there are areas of outstanding landscape and scenic beauty where the environmental and heritage qualities need to be carefully balanced against the benefits of oil and gas from unconventional hydrocarbons.”

He said that any proposals for fracking wells in valuable countryside “must recognise the importance of these sites”.

A previous government-commissioned report said as many as 2,880 wells could be drilled in the new licence areas, generating up to a fifth of the country’s annual gas demand at peak and creating as many as 32,000 jobs.

However, the report warned that communities close to drilling sites could see a large increase in traffic. Residents could face as many as 51 lorry journeys each day for three years, the study said.

It also warned of potential strain on facilities for handling the waste water generated by hydraulic fracturing.

There were also concerns over the potential environmental impact on the countryside.

PINS gives 52 Pages of Pre-application Advice – and Still get it Wrong

I previously blogged on here that Gladmans ‘needed their heads examined’ for using the special measures procedure to apply for a site with an up to date local plan on BMV agricultural land where they were subsequently refised with no second chance.

Martyn Twigg of Gladmans provided me with the 52 pages of pre-app advice that PINS gave which explains why they submitted.

52 Pages! and they still got it wrong.  A warning if ever there was one that you should always be cautious about pre-app advice and there is no substitute for local expertise and knowledge.

The key section (I have uploaded it on dropbox) is  section 3.2.  Despite having an up to date local plan and that plan being used as the basis for calculating the backlog at two appeals the advice is that it should revisit whether to use the residual approach in favor of the Sedgefield approach on the basis of the recent NPPG.  What bad advice.

Firstly you only ever vary from an residual approach when a plan is out of date and there is a backlog.  A recently adopted plan is unlikely to have a backlog if you calculate the trajectory on the basis on which it was adopted.  So the guidance simply does not come into play.

Secondly the oddly undated pre-app note does not take into account the case of Bloor Homes V SoS issued on March 2014 relating to a nearby district in the same circumstance (possibly after the pre-app note was issued) clarifying that it is perfectly acceptable for an inspector to adopt a residual approach as in the two previous Blaby appeals.

What Gladmans should have done was to withdraw the application after the Bloor Homes decision had come in.  If this was a S78 appeal Balby could legitimately asked for a partial award of costs if they carried on.

Which illustrates again how inefficient the special measures regime is. Everyone time is wasted by an applicant submitting an application which on the basis of recent appeals, caselaw and a recently adopted plan stood no realistic chance of success.  In the non-special measures system there is an in built incentive in the system against such timewasting. Not so in the special measures system.


Has Nimbyism had its Day?

Telegraph – More likley an expression of despair on lack of house-building – which government reforms had led to a collapse – than vote of confidence in the failed NPPF.

Local communities that once opposed new housing developments now support them because of the Coalition’s controversial planning reforms, the Government’s new planning minister has claimed.

In an article for The Telegraph, Brandon Lewis appeared to suggest that Nimbyism was on the wane as he said there had been a “dramatic swing” in public opinion – with almost half of people now in favour of new housing in their area.

He claimed the Government’s reforms, which introduced a presumption in favour of sustainable development, were responsible for this transformation because people now had a greater say in where new housing goes.

However the comments risk causing anger in the countryside where the Coalition’s reforms have triggered a huge surge in planning applications for new house building – often in the face of significant local opposition. Many communities across the country are fighting plans for new housing estates imposed by councils that have to meet new five year housing targets under the reforms.

The Government has published the results of a British Social Attitudes survey which found that the proportion of people in favour of house building in their area had risen from 28 per cent to 47 per cent between 2010 and 2013. By contrast, the proportion of people opposed to the construction of new homes in their communities fell from 46 per cent to 31 per cent in that time.

In his article, Mr Lewis, who was promoted to new Housing and Planning minister in last week’s reshuffle, hailed the survey as evidence that the Coalition’s planning reforms had made house building more acceptable.

“Since 2010 there has been a dramatic swing in public opinion about house building,” he said. “Now that local people have a bigger say over where new housing goes they are much happier to support housing building in their area.”

Writing on the Telegraph’s website, he said that this “changing mind-set” could be seen in an increase in new homes with planning permission after the introduction of the National Planning Policy Framework in March 2012.

He said: “This changing mind-set can now be seen in the pipeline of projects coming through the reformed planning system. Last year successful applications for major housing schemes were up 23 per cent, and planning permissions were granted for 216,000 new homes.

“The new planning system puts local people in control, so if they want to build more homes, they will.”

The Coalition has faced significant controversy over its decision to rip up 1,200 pages of planning protections and replace them with a new planning rulebook, known as the National Planning Policy Framework (NPPF), with a new bias in favour of sustainable development. Some claimed the reforms amounted to the greatest threat to the countryside since the Second World War.

In 2011, Greg Clark, the then planning minister, caused anger after saying that critics of the changes were behaving with “nihilistic selfishness”. His remarks prompted protests from groups such as the National Trust. The Telegraph launched a campaign against the changes, called ‘Hands Off Our Land’. The Coalition was ultimately forced to make changes to the framework because it became law in 2012.

In his article, Mr Lewis praised the Coalition’s two previous Planning ministers – Mr Clark and Nick Boles, who drew up and then drove through the reforms, ripping up protections that dated back to the 1940s.

Mr Lewis, who was given the job of both housing and planning minister in last week’s ministerial reshuffle, said: “It’s a job that has been brilliantly executed over the last four years by my predecessors Greg Clark and Nick Boles.

“Regional Strategies have been scrapped, thousands of pages of Government ‘guidance’ have been streamlined, and local communities have been put back in control.

“Those reforms are now complete. That’s why the Prime Minister has decided to reunite the housing and planning portfolios, and I am delighted to have been appointed the new Minister of State for both.”

But campaigners warned that many communities, particularly in rural areas, were battling unsuitable development from builders who were taking advantage of a bias in favour of sustainable development in the NPPF.

Shaun Spiers, chief executive of the Campaign to Protect Rural England, dismissed the report as a “propaganda bulletin” for the Government’s planning reforms.

He said: “The new minister suggests Nimbyism is dead but we know lots of communities are very concerned about poorly-sited housing on their doorsteps.

“It is very good news if more people are in favour of house building, but I think it is a bit hopeful to suggest that this is down to the Government’s planning reforms.”

Clive Betts MP, the chairman of the Communities and Local Government committee which is investigating the planning reforms, said: “It shows is that there is an increase in the understanding that we are short of housing and need to built more.

“Even if people have got a home, they have worries about their children getting one – getting a home for the next generation. There is evidence that the planning reforms are working in some places and not in others.

Steve Turner, from the Home Builders Federation, said the findings of the survey were “extremely positive” and pointed to a “growing acceptance of the need for more homes”. However, he said: “I am not sure it is accurate to link the planning reforms in 2012 to a sign change in public attitudes between 2010 and 2013.”

The British Social Attitudes study surveyed 3,000 people in 2010, and then 1,000 in 2013. The study also found that opposition to housing has fallen most among those aged 65 and over, from 52 per cent in 2010 to 30 per cent in 2013.

The 5 Year Supply after Gladman (and Hunstan) #planorak

To lose three key cases in a week is something of a misfortune for Gladman.

At Blaby on the first special measures appeal the inspector backed the Liverpool approach in a recently adopted local plan.

Secondly at Winslow  they have lost a JR to block a neighbourhood plan on the basis that the draft local plan which defines the need the neighbourhood plan does not assess the full objectively assessed need (OAN).

Finally in Wokingham (Gladman Developments Limited v Wokingham Borough Council. Case No: CO/1455/2014) they failed to get an allocations plan overturned on the basis the core strategy OAN was out of date.

On Liverpool V Sedgefield it is clear now that although at S78 appeals inspectors generally favour Sedgefield, the courts have upheld the ability of inspectors to go with Liverpool, as guidance does not hard and fast specify Sedgefield and sometimes it is impractical.  This is especially the case where there is a recently adopted plan based on a large scale strategic allocation that will take a number of years to gear up.

On neighborhood plans it is now very clear from caselaw and guidance that neighbourhood plans can allocate plans even in advance of a local plan and where a local plan is in the works but its OAN assessment has been found wanting.  The clear logic of the courts  is that it is better to have some allocations than none at all.

However that does not mean that a neighbourhood plan cannot be out of date the day it is agreed.  Lack of OAN can be another material consideration, and after Hunstan and final guidance paragraph 2a-004 it is clear that the inspector will start with assessing full OAN in a policy and constraints off position before then moving on to other policy issues.

There does however appear to be two schools of though in the planning inspectorate, both sadly backed up in inconsistent SoS decisions.

The first (minority) position was expressed in the famous Feniton cojoined appeals- as if Hunston did not exist!

‘It is not for me, in the context of determining whether specific development proposals should be permitted, to usurp that function of the EiP by forming a view as to whether the housing requirement figure set out in the eLP will meet the objectively assessed housing need for the district: I have neither the remit nor the evidence. I do however need to determine whether the Council is able currently to demonstrate a five year supply of housing land, as required by paragraph 49 of the NPPF.’

But this is not the majority position.  Rather this is that on appeal in s78s, even if a LPA has adopted CS and allocation plans, the Hunston judgement means that a needs assessment will have to be carried out by the Inspector.  And if the CS is out of date (e.g. it relies on old RS figures) then a recently adopted allocation plan will not protect the LPA from the NPPF’s para 14. presumption clause.

Events in East Cheshire have brought this to a head where on 5 appeals 5 inspectors have produced 5 different OAN figures,

The SoS has written to an inspector in a sixth case asking they especial attention” to Cheshire East’s five-year housing land supply and to give a “considered view”.  So now a S78 appeal becomes a surrogate EiP.

So it is clear that even if you have a one day old Neighbourhood Plan this wont protect you if the OAN figure is not supported.  Hence developers more and more will get into the game of trying to manipulate numbers in the best light, which used to be the preserve of LPAs only.

As East Cheshire shows this is hardly a satisfactory situation.  Neither LPAs or developers are that objective, and S78 appeals are a wasteful and duplicitous means of determining OAN.  Bring back the NHPAU I say as the main arbiter for OAN, leaving inspectors to determine whether any policy grounds overule that.   Otherwise, as we have found, we are all making it up as we go aalong based on an ever longer and acreting body of case work, guidance and precedents.


So Much for Luton’ Terror Tactics – Key DTC Test Case

Planning resource

A Home Counties council has launched a legal challenge against a neighbouring authority’s decision to approve a 5,000-home urban extension, arguing that it failed to meet the Duty to Cooperate and unlawfully re-drew green belt boundaries.

Luton Borough Council has applied for a judicial review to overturn the decision by Central Bedfordshire Council to give the green light to the extension, to the north of the town of Houghton Regis.

Central Bedfordshire Council approved the outline application, which proposes up to 5,150 homes and more than 200,000 square metres of retail and industrial space across 260 hectares of mostly farming land, on 2 June.

Luton Council claims that Central Bedfordshire did not comply with the Duty to Cooperate, a legal requirement under the Localism Act which means authorities have to continuously engage with neighbours on cross-border strategic issues such as housing.

It also argues that Central Bedfordshire has unlawfully re-drawn green belt boundaries in approving the application, a process that should be carried out in the local plan process.

A further ground of challenge is that Central Bedfordshire failed “to assess lawfully or at all the sequential test for the [scheme’s] retail proposals”.

In a statement, Luton Council confirmed that “on 8 July it started proceedings for a judicial review of Central Bedfordshire Council’s decision to grant planning permission for a major urban extension to the north of Houghton Regis comprising approximately 5,000 homes and employment uses including considerable volumes of retail and retail distribution floorspace”.

It added: “Luton contends that the application has not been determined correctly, specifically:

  • That in accordance with national guidance, the alteration of greenbelt boundaries should have been brought forward through Central Bedfordshire’s plan-making process rather than through the determination of a planning application
  • That the application has undermined Central Bedfordshire’s Local Plan by predetermining a number of significant issues
  • And that in determining the application, Central Bedfordshire Council has failed in its duty to cooperate with its neighbouring authority, especially given Luton’s very significant need for new housing and especially affordable homes which it cannot deliver within its own boundaries.”

Jason Longhurst, director of regeneration and business at Central Bedfordshire Council, said: “Luton Borough Council have lodged papers with the High Court, challenging Central Bedfordshire Council’s decision to approve the planning application for development to the north of Houghton Regis.

“The first stage requires a formal response to the grounds cited by Luton as forming the basis of their ‘challenge’ and the council’s legal representatives are working on our response at the moment.

“It would be inappropriate for us to comment further or speculate ahead of any decision.”

Luton has long complained about the fact that it cannot meet its own housing need but neighbouring authorities are unwilling to take the extra homes.

In January, communities secretary Eric Pickles accused Luton of “terror tactics” and “trying to bully North Hertfordshire council” to take its extra homes.

Pickles’ comments were prompted by a question from Gavin Shuker, the Labour/Co-op MP for Luton South, asking how the borough should respond to the fact that, up to 2030, it needs about 30,000 new homes but can only build about 6,000 within its own boundaries.

In response to Pickles’ comments, Luton Council said: “The idea that Luton is not actively engaging with its neighbours to address its unmet housing need is completely incorrect”.

Of course the background here is that Luton wants west of Luton and Central Beds does not.  None the less the challenge is curious as under the now defunct joint plan North of Houghton Regis was down for major expansion, and has an approved development brief for 7,000 dwellings, and th eneed for Wet of Luton arose because of even from this an underestimation of OAN which led to West of Luton.  Curious they are not mutually exclusive.   At first sight it appears to breach the ‘very special circumstnaces’ test.  However noone is putting forward an laternarive relaistic plan which does not involve north fo Houghton Regis, so in those circumstances an advanced draft allocation is material and surely can be ‘very special’ circumstances as well as ‘exceptional’circumstances. The application was approved on 4th Sept 2013 by Central Beds and referred to the SoS who has declined to intervene.  The challenge stands no real chance of success mixing up plan making tests with DM ones.


Boris on ‘Nimbies in Disguise’


“Nimbies in disguise” are dishonestly claiming to care about architecture when in reality they want to block any development, Boris Johnson has said.

In a scathing assessment, the Mayor of London said homeowners “pretend” they care about new homes being affordable or well-designed, in fact they simply oppose new developments entirely.

Mr Johnson has promised to increase house-building in the capital, and wants to see 45,000 new homes by 2018.

However, he says he his efforts have been frustrated by residents opposed to any new development.

There is a particularly bitter planning fight over plans to build 700 flats on the site of a Royal Mail sorting office at Mount Pleasant, North London. Planning opponents say the scheme is “bland” and too few of the homes are “affordable”.

But Mr Johnson told the BBC: “Very often in London what you see is people objecting to a scheme purportedly because they say it fails such-and-such an architectural criteria, it’s not beautiful enough, or something like that. Or they say there isn’t enough affordable housing.

“I think it is odd that people actually try to stop developments going ahead. I think of the amazing development at Deptford [south east London] – that’s been blocked for twenty years.

“You have a coalition of people who pretend to be in favour of such-and-such a thing – better architecture or whatever – and what they want is no building in their area. You’ve got nimbies in disguise. That is very often the problem.”

Mr Johnson said cautioned wealthy foreigners against treating London property as “bank accounts in the sky”, saying the market is not “a one way bet”.

There are “signs of softening” at the top of the market, he said. The number of vacant properties in the capital is at its lowest level since the 1970s, he added.