The SoS Still Rejects the William Davis Principle – the Salford Case #NPPF

Following my post questioning whether following Brandon Lewis’s letter to pins was applying a ‘double hurdle’ sustainable development test as per ‘William Davis’ a correspondent draws my attention to a new recovered appeal decision the next day.

APPEAL BY PEEL INVESTMENT (NORTH) LTD AND TAYLOR WIMPEY UK LTD
LAND TO THE NORTH AND SOUTH OF WORSLEY ROAD AND LAND AT AVIARY
FIELD, BROADOAK, SALFORD, GREATER MANCHESTER, M28 2WG
APPLICATION REF: 13/63157/OUTEIA

Whilst alwsy good to see the world worst developable lose an appeal relating to protected green space the SoS decision is notable for rejecting the inspector’s view that William Davis applied.

The Secretary of State has very carefully considered the views of the parties (IR149- 155 and IR210-254), and the Inspector’s reasoning at IR359-402, as to whether the proposal is sustainable development. He has considered the Inspector’s remark at IR323 that the courts have ruled that the presumption in favour of sustainable development in paragraph 14 of the Framework should only be engaged if the development is found to be sustainable development and his remark at IR359 that, the second part of the second section of Framework paragraph 14 is only engaged if the proposal can be judged to be sustainable development. The Secretary of State observes, however, that a two-stage approach was rejected by Patterson J in Dartford BC –v- Secretary of State for Communities and Local Government [2014] EWHC 3058 (Admin). Turning to IR359, the Secretary of State shares the Inspector’s view that, as the proposal is not in accordance with the DP, the first part of paragraph 14 of the Framework is not engaged. However, he does not agree with the Inspector’s subsequent remark that the second part of the second section of paragraph 14 of the Framework is only engaged if the proposal can be judged to be sustainable development (IR359). 

In other words it all rest on the issue of ‘other material considerations’ and the SoS of course can give whatever weight to them he or she likes, turning a presumption in favour of development into a predisposition against development as and when the electoral calculus takes hold.  So deciding whether to appeal is back to a high risk proposition having to predict which way the wind in blowing six months ahead.  The certainty the NPPF was supposed to give is gone, as is the simplicity as it is backed by dozens of amendments and ‘side policies’ more then ever under the PPG regime, and certainly more caselaw about the decision protocol paragraphs.  As such the NPPF has become as useful as a hole in the head for all sides.  How can anymore any one defend a policy that the SoS is applying in a way that gives him discretion to refuse or approve anything or any planning reason?  There is no longer a default ‘yes’, the default is what will please ministers gut political instincts.

As such is is unwise to appeal in those cases where there is any doubt about whether or not a landscape policy is a ‘housing supply policy’ or not and even when there is no local plan policy where there is any doubt about ‘valued landscapes’ or landscape character.  In this case Peel were arrogant enough to think that a high powered council and sheer pressure would wear everybody down.  Under Boles or Clarke yes, not under current political circumstances.

The other interesting interesting about the appeal is that every other para. of argument on both sides was every other paragraph relating to case law.  In a simple and ffective planning system this should not have to be the case, all again due to the vague and contradictory language and test used in the NPPF.  Again will anyone stand up and defend this now it requires a lever arch file of contradictory case law to (fail) to make sense of.  I thought not.  John Rhodes has been very quiet in recent months, well hes had teh usual award for public service failure – the Order of the Boot Extended – hasn’t he.

 

 

The Labour Statutory Local Plans Idea – PINs should not be Judge and Jury @EmmaReynoldsMP

Emma Reynolds MP at the National Planning Forum said that Local Plans should be statutory and if you didn’t have one by the end of 2016 the government would intervene and give the job to PINS.

This won’t legally work.  PINS would be judge and jury in this case.  The reason we have independent local plan examinations in the first place is largely because of because of article 1 of protocol 1 of the ECHR  and the right for a fair hearing when that right is interfered with guaranteed by Article 6.  It is very doubtful whether or not PINS examining a PINS plan would be ‘an independent and impartial tribunal within reasonable time’ under this article.  Besides it would be contrary to common law and rather a rather distasteful charade.

Who else, PINs is the obvious candidate however they are an arm of IDEA which is an arm of the LGA, so the government would be giving it back to local government, and it interferes with the fundamental advisory role of PINS.

How to deal with the issue – a supplier framework as for neighbour hood plans awards would be a possibility.  Another [possibility is a National Town Planning Agency (which might have a range of tasks in any labour led government).  The key issue for this is governance, would any meetings where a minister decides be public, as ministers currently insist local government meetings are?  Would ministers at least have hearings from local government and other experts to advise them and would these be public?  Its possible but difficult and needs to be carefully thought through. I would not envy a minister which potentially would have to take on deciding site by site on dozens of local plan sites for dozens of local plans.  Given the SoS workload already I think DCLG would have to take on a couple of extra junior ministers just to get the job done.

Lewis Writes to PINS to Underline the Shift to Block Rural Development – Back to the William Davis ‘double hurdle test’

As if the shift wasn’t already obvious enough with recent recovered appeals – Lewis underlines it.  Effectively their is no longer a default of yes when landscape harm is involved.  Indeed the letter doesn’t even mention ‘valued landscapes’ stressing  the importance Lewis gives to areas ‘outside designated areas’ and ‘landscape character’ more widely.  It leaves a huge gulf though between the lanugae and tone of the NPPF – the presumption in favour – and the way ministers now preelection wish to apply it – pretty much identical to the old PPS3 and PPS4.  It now implies that the key test in no longer para.14 but para 17. which is being applied as if it were a test.  The early NPPF caselaw and appeals were contradictory until the SOS backed an inspector who rejected the ‘William Davis Ltd.’ principle – that the presumption only applies to development which is sustainable implying a double test.  Pickles on several occasion backed inspectors who said this was contrary to the NPPF most notably in in conjoined appeals at Droitwich Spa

The Secretary of State also notes the recent decision in Dartford Borough Council v. Secretary of State for Communities and Local Government and Landhold Capital Limited where Mrs Justice Patterson rejected elevating William Davis into a formulaic sequential approach to paragraph 14 of the Framework. Like the Inspector, the Secretary of State finds the relevant policies for the supply of housing are out of date… and therefore the presumption applies, and that the evidence…demonstrates that the Appeal A scheme is sustainable in terms of economic, environmental and social benefits.’ –

Now he appears to have changed his mind and we are back to a ‘double hurdle test’. It is difficult to see how Brnadon Lewis is not appliying a’formulaic sequential approach to paragraph 14 of the Framework’ if he is applying para.17 first to test whether there is harm to landscape character and ‘taking full account of the environmental as well as the economic and social dimensions of development proposals. ‘ first to state that development is not sustinable.

This is a fundamental shift by a government that does not want to admit it got it wrong and bottled it.  Let Brandon Lewis open a home for three legged donkeys.

Dear Simon, Landscape character and prematurity in planning decisions

I have become aware of several recent appeal cases in which harm to landscape character has been an important consideration in the appeal being dismissed. These cases are a reminder of one of the twelve core principles at paragraph 17 of the National Planning Policy Framework – that plans and decisions should take into account the different roles and character of different areas, and recognise the intrinsic character and beauty of the countryside – to ensure that development is suitable for the local context. While National Parks, the Broads, Areas of Outstanding Natural Beauty and Heritage Coasts quite rightly enjoy the highest degree of protection, outside of these designated areas the impact of development on the landscape can be an important material consideration. We are publicising some of these appeal cases more widely, with the help of the Planning Advisory Service, to promote greater understanding of how landscape character can be taken into account by local planning authorities in their decisions. These cases also reflect the wider emphasis on delivering sustainable outcomes at the heart of the Framework, which means taking full account of the environmental as well as the economic and social dimensions of development proposals. And, of course, these roles should not be undertaken in isolation – the economic factors can secure higher social and environmental standards. I would also like to take this opportunity to restate our position on prematurity, which I know is also an issue that causes debate in some cases. Paragraph 216 of the National Planning Policy Framework makes clear that weight can be given to relevant policies in emerging Local and neighbourhood plans, and the particular factors that need to be considered when doing so. When arguments relating to the prematurity of development are advanced, our planning guidance sets out the tests to be applied. The weight that can be attached to an emerging plan will need to be considered carefully when assessing whether a prematurity argument is justified. We will continue to consider whether this careful balance is best serving local communities.

FT – Government backtracks on offices-to-homes plan

FT – So after endless warnings it wouldn’t work, the DCLG at first fighting off Treasury attempts to force it, initial supporters such as oris and Vince Cable fiercely fighting it, the government finally admits it didn’t work – simply because everything planning and housing wise the Policy Exchange Dumb tank proposes is tested and has to be proven wrong because the government doesn’t trust any one else’s ideas and is too dumb to realise that the last body they should be listening to is Britain’s dumbest dumb tank with an unenviable world record beating record of clusterfuck disastrous policy failures,  So will Alex ‘Half Baked’ Norton the author of this policy and now number 1o’s housing adviser, and author of pretty much every disaster in waiting such as the vacant buildings credit, The NPPF and the Starter Homes initiative now resign his head in shame, totally disgraced or will he prove Parkinson’s law and get a promotion?

Plans to extend developers’ right to convert offices into homes have been abandoned by the government after a backlash led by central London boroughs, business leaders and London mayor Boris Johnson.

Rules were relaxed in 2013 to make it easier for developers to convert empty offices into homes but a large proportion of conversions involved occupied offices, triggering fears that established businesses were being evicted.

 Westminster has lost 5 per cent of its office space to residential use since the policy change came into effect, a report last year found — enough space for 78,000 workers.

The change was originally introduced for a three-year period but Whitehall last year proposed to make it permanent. However, it has now quietly dropped this idea, an explanatory memo released by the government this week reveals.

Responses to a government consultation carried out last year had raised “concern on the future availability of business premises, the impact on surrounding businesses and the quality of the new dwellings”, according to the memo.

The government will “further consider the case for extending the office to residential reforms”, communities secretary Eric Pickles said this week — but that will have to wait until after the general election.

Mr Johnson warned last year that making it easier to convert offices to homes “threatens the future of the City”.

The government’s high street champion Mary Portas and business leaders also lined up against the measure, arguing that clusters of creative and design businesses in particular were being damaged.

The news comes too late for the businesses of Utopia Village in Primrose Hill, north London. Mr Pickles last week approved plans by the small business park’s owner to convert the Victorian buildings into homes, despite a fierce campaign by its occupiers.

Camden council had rejected the plans but Mr Pickles overruled it.

John Chambers, of music tour promoter and Utopia tenant Marshall Arts, welcomed the U-turn “though it is probably too late for us, which is sad”.

The way the policy relaxation had been drafted was “ham-fisted”, he said.

Peter Box, housing and planning spokesman for the Local Government Association, said he was “pleased” the government was ending the relaxation in the rules.

The change has “led to existing businesses being evicted and seen homes created which do not meet the identified needs of a community”, Mr Box said.

Despite its U-turn on the conversion of offices to homes, the government on Wednesday announced plans to allow casinos, distribution centres and storage facilities to be turned into homes more easily.

If you had to contain London’s Green Belt loss to One Site its this One

The Chessington Line to Nowhere

Kingston Guardian

Kingston Liberal Democrat politicians have called on the Mayor of London to oppose suggestions by business leaders for a new suburb in Chessington.

The recommendations, outlined by business group London First earlier this month, call for tens of thousands of new homes to be built on green belt land within London.

The new suburb would be served by train expansion through the planned Crossrail 2 scheme, the group said.

Edward Davey started a Facebook group today called: “Say no to 70,000 homes in Chessington”.

Kingston Council leader Liz Green said: “We call on Boris [Johnson] to reject the recommendations that suggest building on our green belt.

“We fight to keep some green and open space within Kingston. We already don’t have that much.”

At the launch of London First’s report, Home Truths, deputy mayor for housing Richard Blakemore stated his support for its recommendations, which include calls for a review of whether green belt land could be used for housing.

But Mr Johnson told the Comet this week: “You don’t have to do this on green belt. My plan is to develop only on brownfield sites.

“Crossrail 2 will make a huge difference.”

Home Truths also recommended boroughs use compulsory purchase powers to reclaim land for housing.

Kingston and Surbiton MP Edward Davey said a new suburb would “put intolerable strain on our roads and local services.”

He added: “The authors of these reports can’t have ever been to Chessington because if they had, they would have realised how daft and damaging these proposals would be.”

There are four reasons why this site is one of the very few in London where GB loss makes sense

1) there is an unbuilt rail corridor extending from Chessington Station to Bansted, construction stopped because of the second world war, it could easily be linked in to Crossrail and so unlike almost every other site proposed in London’s Green Belt does not raise a transport capacity objection

2) The area around Malden Basset is visual contained with forests and hills all around.

3) Kingston has an acute housing need, lack of large sites and  Chessington has an aging and increasingly poor population in desperate need of a boost

4) There is very little accessible Green Space in this area, for loss of a few 100 acres in Chessington you could create new country parks several times greater in size.

[An] option would be to allow more intensive residential development at a location along the south western end of the route. As an example, the group identified the area around Chessington South in the Royal Borough of Kingston upon Thames, which is one of the destinations being considered for Crossrail 2. The area to the south of the Borough contains land that could potentially be released for new housing. The main transport connection at the moment is an underutilised branch line to Chessington South, which provides two trains per hour to Waterloo with a 36 minute journey time. An extended Crossrail 2 line and new station in the area could at least double service frequency to a minimum of 4 trains an hour and provide a direct rail connection into the West End in 35-40 minutes. For illustrative purposes, if 450 hectares of land were released for housing then some 70,000 new homes could be built in a new high value residential location. Assuming a CIL contribution of £200 per square metre per dwelling, initial modelling suggests that some £1,660 million could be raised for Crossrail 2.

Well Ed you asked for it. Its actually quite a good site that any sensible London Green Belt review would have on its shortlist. Is this small amd dull area of countryside worth 1.7 billion, where else would you find it for Crossrail 2?

 

Government Adopts Scottish Definition of ‘Pay Day Loan Shop’ (almost)

For which no less than 27 exemptions in the new GPDO aply in new UCO Amendment

The Town and Country Planning (Use Classes) (Amendment) (England) Order 2015

Amendments to the Use Classes Order

2.—(1) The Use Classes Order is amended in accordance with the following paragraphs.

(2) In article 3(6) (exclusion from use classes), at the end, for the full stop substitute a comma and insert—

“(n)as a betting office,

(o)as a pay day loan shop.”

(3) After article 3(6) (exclusion from use classes), insert—

“(6A) For the purpose of paragraph (6)—

“high-cost short-term credit” has the meaning given in the edition of the Financial Conduct Authority’s Handbook which came into effect on 1st April 2014 (following an amendment by the Authority in the Consumer Credit (Consequential and Supplementary Amendments) Instrument 2014(1)); and

“pay day loan shop” means premises—

(a)

from which high-cost short-term credit is provided principally to visiting members of the public and includes premises from which such credit is provided in addition to other financial or professional services, and

(b)

which, but for provision made in this article, would fall within Class A2 (financial and professional services) of the Schedule to this Order.”

(4) In Part A (Use Classes) of the Schedule, in Class A2(c) omit “(including use as a betting office)”.

This is pretty much exactly the sensible definition the Scottish Government consulted on recently. 

As the scottish consultation said ‘In many cases, …, PDL may form only a limited aspect of the range of financial services offered from the premises and may be a part, perhaps only a very small part, of the overall use of the premises.’  In other words it probably wont meet the ‘primary purpose’ test for a change of use.  Interestingly the government has adopted  the solution I suggested back in Nov 2104. But without the sophistication of the Scottish approach, no exemption for example for Pawn Shops and Credit Union branches.

SHMAs have a Shelf Life of One Year – Pickles

From his megatstatement yesterday

In response to our commitment made during the passage of theInfrastructure Bill (26 January 2015, Official Report, Column 644), the government is also updating planning guidance to make clear that up to date assessments of housing need should not normally need to be updated for a full 12 months, and that untested assessments of housing need are inevitably less robust than those which have been subject to examination.

So Shmas – and the evergrowing list of privately prepared Anti-SHMAs are only an annual event now – phew there was I thinking that permanent arguments had replaced plan making!

Pickles Four Times a Week Change to the #NPPF – Housing Standards

From 25.3.2015 Epic Statement to Parliament

Housing standards: streamlining the system

New homes need to be high quality, accessible and sustainable. To achieve this, the government has created a new approach for the setting of technical standards for new housing. This rationalises the many differing existing standards into a simpler, streamlined system which will reduce burdens and help bring forward much needed new homes.

The new system will comprise new additional optional Building Regulations on water and access, and a new national space standard (hereafter referred to as “the new national technical standards”). This system complements the existing set of Building Regulations, which are mandatory.

To implement this new regime, this written ministerial statement sets out the government’s new national planning policy on the setting of technical standards for new dwellings. This statement should be taken into account in applying the National Planning Policy Framework, and in particular the policies on local standards or requirements at paragraphs 95, 174, and 177, in both plan making and decision-taking.

Plan making

From the date the Deregulation Bill 2015 is given Royal Assent, local planning authorities and qualifying bodies preparing neighbourhood plans should not set in their emerging Local Plans, neighbourhood plans, or supplementary planning documents, any additional local technical standards or requirements relating to the construction, internal layout or performance of new dwellings. This includes any policy requiring any level of the Code for Sustainable Homes to be achieved by new development; the government has now withdrawn the code, aside from the management of legacy cases. Particular standards or requirements for energy performance are considered later in this statement.

Local planning authorities and qualifying bodies preparing neighbourhood plans should consider their existing plan policies on technical housing standards or requirements and update them as appropriate, for example through a partial Local Plan review, or a full neighbourhood plan replacement in due course. Local planning authorities may also need to review their local information requirements to ensure that technical detail that is no longer necessary is not requested to support planning applications.

The optional new national technical standards should only be required through any new Local Plan policies if they address a clearly evidenced need, and where their impact on viability has been considered, in accordance with the National Planning Policy Framework and Planning Guidance. Neighbourhood plans should not be used to apply the new national technical standards.

For the specific issue of energy performance, local planning authorities will continue to be able to set and apply policies in their Local Plans which require compliance with energy performance standards that exceed the energy requirements of Building Regulations until commencement of amendments to the Planning and Energy Act 2008 in the Deregulation Bill 2015.

This is expected to happen alongside the introduction of zero carbon homes policy in late 2016. The government has stated that, from then, the energy performance requirements in Building Regulations will be set at a level equivalent to the (outgoing) Code for Sustainable Homes Level 4. Until the amendment is commenced, we would expect local planning authorities to take this statement of the government’s intention into account in applying existing policies and not set conditions with requirements above a Code level 4 equivalent. This statement does not modify the National Planning Policy Framework policy allowing the connection of new housing development to low carbon infrastructure such as district heating networks.

Measures relating to flood resilience and resistance and external noise will remain a matter to be dealt with through the planning process, in line with the existing national policy and guidance. In cases of very specific and clearly evidenced housing accessibility needs, where individual household requirements are clearly outside the new national technical standards, local planning authorities may ask for specific requirements outside of the access standard, subject to overall viability considerations.

Decision taking, Transition and Compliance:

From the date the Deregulation Bill 2015 is given Royal Assent until 30 September 2015: The government’s policy is that planning permissions should not be granted requiring, or subject to conditions requiring, compliance with any technical housing standards other than for those areas where authorities have existing policies on access, internal space, or water efficiency.

Planning permission may still be granted on the basis of existing Local Plan and neighbourhood plan policies on access, internal space, and water efficiency, even though they may have a degree of conflict with the new national technical standards.

Where there is an existing plan policy which references the Code for Sustainable Homes, authorities may continue to apply a requirement for a water efficiency standard equivalent to the new national technical standard, or in the case of energy a standard consistent with the policy set out in the earlier paragraph in this statement, concerning energy performance.

From 1 October 2015: Existing Local Plan, neighbourhood plan, and supplementary planning document policies relating to water efficiency, access and internal space should be interpreted by reference to the nearest equivalent new national technical standard. Decision takers should only require compliance with the new national technical standards where there is a relevant current Local Plan policy.

Planning policies relating to technical security standards for new homes, such as door and window locks, will be unnecessary because all new homes will be subject to the new mandatory Building Regulation Approved Document on security (Part Q). Policies relating to the external design and layout of new development, which aim to reduce crime and disorder, remain unaffected by this statement.

Where policies relating to technical standards have yet to be revised, local planning authorities are advised to set out clearly how the existing policies will be applied in decision taking in light of this statement.

If, in the light of experience in implementing this policy statement, the government considers that it is not being accorded sufficient weight by planning authorities, we will consider bringing forward new legislation to secure implementation.

Pickles Three Times a Week Change to #NPPF – Parking

Statement to House 25/3/2015

As prefigured in correspondence with Boris – has anyone got an indexd PDF version of the NPPF with all of the endless amendments?

Parking: helping local shops and preventing congestion

This government is keen to ensure that there is adequate parking provision both in new residential developments and around our town centres and high streets.

The imposition of maximum parking standards under the last administration lead to blocked and congested streets and pavement parking. Arbitrarily restricting new off-street parking spaces does not reduce car use, it just leads to parking misery. It is for this reason that the government abolished national maximum parking standards in 2011. The market is best placed to decide if additional parking spaces should be provided

However, many councils have embedded the last administration’s revoked policies. Following a consultation, we are now amending national planning policy to further support the provision of car parking spaces. Parking standards are covered in paragraph 39 of the National Planning Policy Framework. The following text now needs to be read alongside that paragraph: “Local planning authorities should only impose local parking standards for residential and non-residential development where there is clear and compelling justification that it is necessary to manage their local road network.”

Building on the success of our previous guidance to help householders rent out under-used car parking spaces, we have also updated planning guidance to local authorities to clarify that non-residential car parking space can be rented out. This will support the shared economy and increase the provision of competitively priced car parking spaces.

Supporting pirate parking as it is known in the trade – very odd.

Much less bad than we might have expected – at least it is evidence based rather than dogmatic.  As course many consultation respondents replied with the compelling Shoupista argument that free parking is economic and urban planning madness.   Would be nice to see Don Shoup and big Eric in a Newsnight Debate.

Pickles Twice a Weak National Policy Tweak – Green Belt Yet Again

Update to House 25/3/2015

Green Belt: protecting against inappropriate development

The government continues to attach great importance to safeguarding the green belt. The fundamental aim of green belt policy is to prevent urban sprawl by keeping land permanently open; the essential characteristics of green belts are their openness and their permanence.

We remain concerned about harm to the green belt where there is unauthorised development of land in advance of obtaining planning permission. In such cases, there is no opportunity to appropriately limit or mitigate the harm that has already taken place.

For these reasons, we will be seeking to introduce a new evidenced-based planning and recovery policy for the green belt to introduce early in the next Parliament to strengthen protection against unauthorised development.

In other words one that is not racially discriminatory to ‘Pykies’ – even though yesterday Sheridan Westlake his SPAD issued a statement to the Telgraph with the incredibly racist Jim Crow like assumption that Gypsies should all go to horse fairs to qualify as TRavellers (even if they are New Age Travellers or Tinkers?)  – imagine if he had said that you have to eat soil food and listen to Marvin Gaye in order to qualify as being black.

He also said

We are also revoking today the following guidance from the last administration which is now redundant following previous changes to planning policy and planning legislation: DCLG, Local authorities and Gypsies and Travellers: a guide to responsibilities and powers, May 2007 and DCLG, Preparing Regional Spatial Strategy reviews on Gypsies and Travellers by regional planning bodies, May 2007.

Which is odd because he had previously revoked it. He needed something to say because the Lib Dems had blocked what he wanted to say.