The Mango Blog

An irreverent look at some of the hot topics in planning


All commentary is given in good faith but does not constitute advice!

For specific help on planning matters, please contact Mango.

  • CIL - Time for a re-think?

  • When CIL was launched in 2010 it was fanfared as the substitute for Section 106 agreements. Councils would be both incentivised by the possibility of great riches to fund infrastructure and limited in the way they could use Section 106 agreements for such matters. Developers in return would have a clear understanding of the size of cheque they would be asked for by the local planning authority if consent were granted. However, ideas generated by the boffins in the ivory towers of Westminster and Cathays Park rarely pan out on the ground in the way they are intended. The need for CIL to follow the adoption of new development plans has delayed its introduction across much of England and Wales. While the rates are supposed to be set by an assessment of infrastructure costs, developers were never going to be able to fund everything; and with the scythe that the Government has taken through local government budgets, the prospect of CIL actually delivering big ticket items is now a pipe dream in many cases. The reality is therefore now in many cases that both developers and Councils try their best to bypass CIL and deal with contributions in other ways. Not allowed to ask for Section 106 contributions for infrastructure on the Regulation 123 list? Easy – just narrow down that list to exclude projects that you expect funding to cover. Worried about the pooling restrictions? Make sure each request covers a separate part of a project so that it can be differentiated from other contributions and not regarded as pooling. The most ridiculous skirt-around of CIL concerns highway contributions. The Regulations expressly restrict the ability to ask for Section 106 contributions towards highway infrastructure. However it is now common practice for Section 106 agreements to be contingent on Section 278 Agreements that themselves require a financial payment. There are then those non-infrastructure items such environmental management of Special Protection Areas, for which CIL just doesn’t work and the restrictions on pooling could prevent compliance with requirements of the Habitats Regulations. Councils are forced to agree Section 106s and assert that it isn’t really pooling when everyone knows that it is. These dodges, skirt-arounds and boundary stretches are not just the tools of cash strapped Councils. Even Inspectors and the Courts have been inconsistent in their approach towards the legitimacy of infrastructure contributions and tariff based contributions contained in Section 106 Agreements. The result is that CIL is now a confused mess that does not provide Councils or developers with certainty and seemingly (because of its rather patchwork implementation) does not generate the cash for infrastructure either. It does seem that rather than channel funds towards appropriate infrastructure, this particular levy (sic) has suffered a terminal breach.



  • Development Management Changes #2 -Validation and amendments

  • Following the recent changes to the Development Management system in Wales, there is now a requirement for LPA’s to notify applicants of any reasons why their application is considered invalid. The applicant can appeal against this non-validation of an application to Welsh Government (via PINS). The appeal must be submitted within 2 weeks of the notice, and Welsh Government will have a period of 21 days to reach determination. If allowed, the application must be validated with the start date backdated to the date of the notice. If refused, the additional information initially requested by the LPA must be provided. Although a welcome stick to incentivise LPA’s to process applications quickly, and introduce clear validation checklists, will this recourse to appeal ever be an option worth pursuing? The LPA retains the application fee throughout the appeal process, and based on recent experience the Inspectorate will surely struggle to cope with further appeal submissions to validate and determine appeals.

    A further change is that any amendments to a proposal submitted post-submission, and pre-determination will generate a fee payable to the LPA of £190 and an automatic extension of time for determination by 4 weeks. This applies, even if re-consultation of the proposal is not required as a result of the change. So whilst the evolution of a proposal to meet requirements is encouraged pre-application, the impacts of any changes, however minor, post submission result in further delay and expense to the applicant and slower decision making timetables. This seems somewhat contrary to the objectives that the Sir Humphreys in Cardiff set out for these changes.

    An additional requirement will be for developers to notify the LPA that they intend to start development on site. This will apply to all decision notices issued after 16 March 2016, and will require the developer to submit the attached notification to the LPA and display a copy on site for the time that the development is under construction. This will provide the LPA with the opportunity to confirm that any relevant pre-commencement conditions are discharged and planning obligations complied with. 

    These changes seem to deliver little more than additional red tape, cost and delay and it will be interesting to see what effect they have on the planning system in Wales.



  • Development management changes in Wales #1 - Time to make an exhibition of yourselves!

  • On 16th March a range of significant changes to development management procedures come into force in Wales.   These form one component of a wider raft of changes introduced by the Welsh Government in the Planning Wales Act (2015), all with the apparent overarching objective of encouraging growth in Wales, through delivery of a more effective planning system. Over the next few weeks we will be giving our take on the changes that the Act will bring about. 

     The first key change that will impact upon developers in Wales, and the subject of today's blog post,  are those in relation to pre-application consultation.  There is a clear emphasis from the Welsh Government that front loading applications is the way it sees planning decisions being made more quickly and efficiently.  

     From 16th March there will be a standard statutory process and fee structure for the provision of pre-application advice by Councils, requiring them to provide formal pre-app advice and creating a national fee structure (up to £1,000 for large, major development).   A written response to all enquiries must be provided within 21 days, unless an extension of time is agreed.   A good start, then.  Yes, there will undoubtedly be issues about actually getting a response from a Council within 21 days but it will at least curb the money grabbing pre-application fees that some Councils have tried to impose in recent months.  Key of course is the quality of the pre-application advice, and experience of that has been rather mixed.  Will applicants get value for money?  Only time will tell.

    A further addition to the red tape of planning in Wales is the requirement that, from 1 August 2016, all outline and full applications for major development (10 dwelling plus, over 1,000 sq m of other buildings) will have to be accompanied by the Pre-Application Consultation Report in order to be validated.

    This report will need to demonstrate that an applicants has met statutory pre-application consultation requirements, which essentially comprises putting up a site notice for 28 days prior to submission and making the draft application available for review.

    A site notice must be put up to advertise the intention to submit a planning application, which seems eminently sensible.  However, it is notable that unlike other forms of notice, there is no obligation for the period of display of this notice period to be proximate to the actual date of submission.

    The more onerous and complicated requirement is that a copy of the draft application must be available for viewing online and at a publicly accessible location for a period of 28 days.  This just illustrates the lack of real world planning experience that seems to exist in the annals of Cathays Park.

    Unlike local planning authorities, most applicants rarely have a ‘base’ close to an application site available as a public venue.  Is it really to be expected that applicants rent space and employ staff for a month so that this requirement can be met?  One option is to specify a location where the pre-application documentation may be viewed online, such as a public library.  However, with many towns losing these facilities, and with many smaller towns never having them anyway, this seems a poor solution for much of rural Wales.  The same applies to the suggestion by Sir Humphrey that maybe the local bank could house an exhibition.  Finding a major bank outside of the big towns these days is nigh on impossible.

    Applicants must also write to the owners and occupiers of adjacent properties/land and consult community and specialist consultees, with a copy of the application also to be made available for them to comment on.  Statutory consultees will need to provide a substantive response in 21 days (and their response during determination of the application should not deviate from this.)  There is no indication however how private applicants, without the access to public address databases of Councils, will be able to determine the owners of unoccupied land.  Again, this is a Sir Humphrey-inspired idea that could bring real difficulties on the ground.

    No-one disputes that there benefits to undertaking consultation prior to submission of major applications.  Indeed that is why pre-application consultation is done already for most major applications at the moment, without the need for a poking stick from Sir Humphrey. The feedback received through pre-application with authorities and statutory consultees or local public exhibitions can be very helpful in forming a scheme that responds to local issues and concerns.

    One of the important aspects of current, non-statutory pre-application consultation is that applicants choose for the form of consultation that is most likely to be effective in conveying the essence of the scheme to those affected by it.  This means distilling technical issues and language into words that non-professionals can understand and having staff on hand at exhibitions to answer queries.

    The formal consultation requirements do not require applicants to explain their proposals or to make any effort to exhibit them in non-technical language.  In fact, the requirement is for applicants to make the draft application and technical reports available for inspection only.   This in practice adds little to helping communities and residents to understand the proposals and find answers to concerns.

    It also seems rather defeating the purpose to force consultation with a technical application pack that is ready for submission.  It leaves little room for change when a scheme is so advanced.  It is more of a fait accompli rather than a genuine consultation.

    A further twist is that, as has been seen with other legislation drafted by Sir Humphrey that the Order does not account for multiple proposals on adjacent sites that individually would fall below the threshold but together would exceed it.  So if you want to dodge the requirements, splitting a scheme into bite size chunks would seem to be the way to go.

    As with all the changes that WG seem to introduce in the planning arena – and there are many - the new consultation requirements have not been well advertised and it remains to be seen how aware and prepared the development sector is for these changes.  This assumes of course that there remains a development sector in Wales for major development after this new raft of red tape makes planning in Wales even more complex than across the border in England.  



  • Going our own way... but in what direction?

  • An e-mail from a planner in England enquiring about the rules in Wales in respect of permitted development has brought to the fore just how different the planning system operating presently in Wales now is from that operating in England. 

    While we all operate a 1APP system for application forms, the similarities seem to end there.  Fees are structured largely the same but are in differing amounts.  So a change of use application in Bristol is £385 but is £380 in Newport.  For the discharge of conditions it is £97 in Gloucester and £95 in Bridgend.

    Then there are the use classes.  While England has A3, A4 and A5 use classes to distinguish between certain types of food and drink uses, Wales has stuck with just the one.

    Permitted development rights?  If you want to convert an office to residential use, then in most places in England this needs no more than prior notification.  Not so in Wales.  The same goes for vacant agricultural buildings.

     Then there’s policy.  Wind turbines on a strategic scale?  Yes please, says Carl Sargent.  Not on your nelly, screams Amber Rudd.  What about fracking?  Well, the exact opposite, of course. 

     The “needs” test for new retail development?  That was, sensibly, abolished in England following research that highlighted how it protected incumbent out of centre retailers and bore no relationship with the effect on the ground of new retailing.  In Wales? Reinforced through recent proposed changes to retail guidance.

    The forthcoming changes to Development Management in Wales that come into effect on 16th March will widen the gulf still further, particularly for major development.  What changes do they hold?  A forthcoming blog article by Nia Russell will reveal all! 

    Unhelpfully, the Welsh Government aren’t the best at publicising the changes or providing a consolidated compendium of planning law and procedure.

    Luckily, there are still a few of us Wales based planning consultants who are keeping track!



  • Retail policy in Wales... moving forward to the 20th Century

  •  

    WG has recently held a consultation into proposed changes to Chapter 10 of Planning Policy Wales and Technical Advice Note 4, relating to retail development in Wales.

    In recent times the retail sector in Wales has all but stopped.  The number of retail schemes in Wales that have been cancelled or abandoned provides evidence of this. The financial crisis has had a significant effect on the appetite of investors generally towards new development, particularly when it is outside of the major cities. 

    The response in England has been to simplify the approach towards new retail development; to give local planning authorities greater independence as to how they support their centres whilst encouraging jobs and investment.  While some LPAs try and ignore it, there is a presumption in favour of sustainable economic development in England. [1]

    It comes therefore as a significant disappointment and concern that this review of Chapter 10, WG has not simplified the Guidance or made it more positive.  It is instead more complex, more prescriptive and, worryingly, gives few words of comfort to those wishing to invest in Wales. 

    Bluntly, it does feel that the Guidance is academic and bureaucratic in character with no grounding in or acknowledgment of, the practical, real world of retail development and investment.

    At a time when Wales desperately needs to show that it is open for business, this is a missed opportunity to put a sign in the Principality’s shop window.  Indeed by failing to present a simplified, more responsive and more commercially informed Guidance, this Draft Chapter 10 and associated Draft TAN4 has the potential to signal to investors that Wales is moving backwards, not forwards.  

    The issues that the consultation raises are numerous, but three are of particular concern are efficiency and competition, the need test and disaggregation.

    Efficiency and competition

    In terms of efficiency, innovation and competitiveness, the current version of PPW Chapter 10 sets as a key objective at 10.1.1 to “secure accessible, efficient, competitive and innovative retail provision for all the communities of Wales, in both urban and rural areas”.  

    This is, inexplicably, deleted from the Draft Chapter 10.  It is not clear why this has been done, and its removal sends an extremely negative message to investors as to the way Wales will respond to a dynamic retail market.

    Need test

    With regard to the need test, the Draft Chapter 10 now devotes almost a page of the Guidance to this, adding to, rather than reducing, the focus on this test as compared to the existing Guidance.

    It was recognised as long ago as the 2006 Barker Report into the Planning System commissioned by DCLG that a retail need test is not fit for purpose in a development management context.  In response to this report, the test was removed from the Guidance in England.

    Unfortunately, in more recent Guidance reviews Wales has missed the opportunity to remove this anachronistic and bureaucratic test.  It is therefore extremely concerning that in this latest Draft Chapter 10 and overhaul of TAN4, the need test appears to be given more, not less, weight.

    WG appears through the Draft Chapter 10 to support the retention of the test without question, without asking whether it is in fact necessary. 

    What does it achieve, in practice? The key objectives of town centres first policy is to protect existing centres from unacceptable impacts and to support investment in appropriate locations.  As can be seen in England under the NPPF, these two objectives are well addressed by impact and sequential tests.  The needs test set out in the Draft Chapter 10 adds nothing more.

    While maintaining the status quo and retaining the need test may be the easy option for WG, it is far from a benign test.  Indeed, retention of the need test it has a number of seriously negative effects.

    Firstly, it has the anti competitive effect of offering protection to existing out of centre retailing.  As Barker notes, it protects not only in-centre incumbents but out of centre ones too.   This has the effect of:

    • Restricting competition between out of centre retailers, distorting the dynamic of the retail sector. 
    • Restricting range and choice for consumers (although I note that this is no longer an objective of Chapter 10)
    • Where a capacity deficit is claimed, limiting investment in locations that, while not within a defined centre, may represent investment capable of supporting such a centre e.g. appropriate edge of centre sites.

    Secondly, it adds significantly to the costs of preparing a planning application for retail development.  In a commercial retail market where profit margins can be very low, this additional cost relative to England does little to support and encourage investment in the Principality.

    Thirdly, it adds to the cost of processing planning applications.  As Genecon highlight, LPAs in Wales do not generally have the technical skills to understand the intricacies of the highly academic quantitative need test, leading to the expense of the appointment of specialist consultants.

    The lack of understanding of the topic is well illustrated at Paragraph 5.2 of the Draft TAN4, where ‘qualitative’ is used to describe a ‘quantitative’ issue.  If WG doesn’t understand what it is dealing with, it does beg the question how it expects LPAs to. 

    The quantitative need test is in my experience a particularly flawed planning test.  Its basis lies not in the real world but an academic assessment of capacity.  It purports to determine “what the market needs” but is based on the use of benchmark trading levels and data that are not used by and have no bearing on the real life decisions of retail businesses.  In my experience, commercial decisions to seek representation in a town are never informed by the LPA assessment of capacity. The only people who consider these need assessments to have any bearing on requirements are professional planners.

    That this obsolescent test is retained and given even further weight in the draft Chapter 10 is likely to be extremely harmful to the realistic prospects of drawing appropriate and necessary retail investment into the Principality.

    Disaggregation

    The concept of requiring applicants to consider ‘disaggregating’ their proposals to fit on sequentially preferable sites is another concept that was considered and abandoned in England, as indeed it has also been in Scotland. 

    In consideration of this issue, in his judgment in Tesco Stores Limited v Dundee City Council [2012] UKSC 13 Lord Hope held at Paragraph 39:

    “Here too the context indicates that the issue of suitability is directed to the developer’s proposals, not some alternative scheme which might be suggested by the planning authority. I do not think that this is in the least surprising, as developments of this kind are generated by the developer’s assessment of the market that he seeks to serve. If they do not meet the sequential approach criteria, bearing in mind the need for flexibility and realism to which Lord Reed refers in Para 28, above, they will be rejected. But these criteria are designed for use in the real world in which developers wish to operate, not some artificial world in which they have no interest doing so.” (My underlining)

    The sensible approach is therefore to require flexibility to the application proposal within any sequential assessment, but not to the extent that it creates an artificial outcome.

    It is disappointing that in updating the Guidance WG has not taken the opportunity to reflect on this judgment (and subsequent decisions of the Courts in England & Wales) that are consistent with its common sense approach and to provide guidance on this matter that has a genuine grounding in the realities of commercial retail development.

    Mango has submitted representations to WG to encourage a more commercial and realistic approach to the application of retail policy.  We await its response with interest!



    [1] (National Planning Policy Framework Paragraphs 197 and 14).