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.

  • Crossing the threshold

  • It is well established in national planning policy, through both the original NPPF and now NPPF2 (at paragraph 89) that development plans must indicate a proportionate, locally-set threshold for assessment of the impact of new retail development and if it does not, then the national threshold of 2,500 sq m applies.

    The National Planning Practice Guidance (“NPPG”) is even clearer as to the Government’s policy on this. It says in answer to the question “When should the impact test be used?” that “..the impact test only applies to proposals exceeding 2,500 square metres gross of floorspace unless a different locally appropriate threshold is set by the local planning authority.” (Our emphasis).

    Against this guidance the position is reasonably clear. Impact is only a test and only needs to be assessed by an applicant where a proposal exceeds either an adopted development plan threshold, or absent such a threshold, the national threshold of 2,500 sq m.

    I note for example the decision of the senior Inspector Clive Hughes in the June 2016 decision at Colchester (Appeal Decisions APP/A1530/W/15/3139492, APP/A1530/W/15/3139491) where he opined (at Paragraph 25) “Paragraph 26 of the Framework says that when assessing applications for leisure development outside town centres, which are not in accordance with an up-to-date local plan, the authority should require an impact assessment if the development is over a locally set floorspace threshold. In this case there is no such threshold so the default figure of 2,500 sq m applies. The combined schemes have a total floorspace below this figure so no impact assessment is required.”

    The apparent objective of policy being drafted in this way is that if a Council wants to exert more control over issues of town centre impact then it must get a shift on with preparing an up to date development plan with an evidence based local threshold. It is also implicit in setting the default threshold at 2,500 sq m that individual proposals below this level ought not as a rule to give rise to significant adverse impacts.

    Rather than rise to this challenge, however, it does seem that some Councils who have been rather lethargic with their plan preparation are forcing developers to force them to submit impact assessments where they are not actually required, for example refusing to register planning applications without a retail impact assessment even though it is not a validation requirement.

    Why are they doing this when the test “obviously” would not apply anyway on the context of the NPPF2 and NPPG? Some might argue that they are seeking to defend a gaping hole left in the defences of allegedly vulnerable town centres by national policy. Others might argue that even after all the economic turmoil, Councils are failing to grasp the realities of the changing retail sector and its implications for town centres and are seeking to put a block on any development that might have any effect on existing town centre retail. This is despite the growing evidence that the biggest threat to the high street is internet shopping and the state of the economy generally, not new ‘bricks and mortar’ floorspace.

    There appears to be two “angles of attack” being adopted to circumvent the objectives of the NPPF2 and NPPG.

    Firstly, if a Council is able to persuade a developer to submit a retail impact assessment, even one that is a ‘light touch’ or described so as not to mention the ‘I’ word, it is then argued that the submitted information is material to the determination of the planning application. This is plainly absurd. Common sense would suggest that information insisted upon that is not formally required ought to be given little weight.

    However that was not the approach adopted by the Inspector in the rather left-field appeal decision in Edwinstowe earlier this year. In reaching his rather surprising view of significant adverse impact on a healthy district centre by a small convenience store, the Inspector in that case took the view (contrary to that set out in the view of Leading Counsel that was provided by the appellant to address this issue), that even though there was no policy requirement for an impact assessment, as one had been provided then it could make the issue of impact material.

    It is perverse that having been instructed to submit a retail assessment by the Council for which it was accepted that there was no formal requirement, that submission opened up the issue that the Inspector then used against the appellant to argue that a development of a scale one-tenth of the national threshold (and below the threshold set in the emerging plan, interestingly) would have a significant adverse impact.

    The second tactic being adopted is giving weight to retail impact policies of the development plan even where the policies don’t comply with the NPPG and NPPF requirements. Aid is prayed in this regard from the judgment of Ousley J in Aldergate Properties. This has been interpreted by some parties as an opinion that sets aside the guidance of the NPPF and NPPG in assessing impact.

    It is certainly the case In the Aldergate Properties judgment that Ousley J underscored the primacy of the development plan and that while the absence of a local threshold would be material to the weight afforded to the development plan’s retail impact policies it did not negate the need to consider compliance with those policies in the first instance.

    However the judgment went beyond this. At paragraph 64 Ousley J opined that while impact may still be material, the threshold removed the burden of doing a proper, researched, assessment. Furthermore he endorsed the common sense view of the NPPF in that “adverse impact is unlikely below the default threshold unless a local authority has decided that a lower threshold is relevant.”

    The effect of this is that while impact may still be a technical policy consideration for any retail proposal falling within the scope of the development plan’s policies, then a) there is no requirement at all for an applicant to prepare a retail assessment to support an application below the requisite threshold; and b) adverse impact is unlikely to arise from a proposal below that threshold.

    The overall approach therefore would appear to be that if a proposal falls below a local threshold in an adopted development or the 2,500 sq m default threshold in the NPPF2, then a) no impact assessment is required; and b) absent the submission of a retail impact assessment by the applicant, the onus falls on the Council to rebut a presumption of there being no significantly adverse impact.

    What is happening on the ground however is that Councils are now applying pressure to developers that do not want to go to the cost and expense of preparing a retail impact assessment where one is not required by policy, that they will be refused permission if they do not submit one.

    The NPPF2 and the costs advice in respect of appeals requires Councils to have clear evidence to support any refusal. However, the mere threat of delay and the cost of an appeal is enough to frighten some developers to give in to these unjustified requests. In acquiescing, they then effectively turn the presumption around, placing the onus to prove no significant impact back on the applicant.

    These tactics to quite obviously defeat the purpose of national planning policy and guidance illustrates that positive planning has yet to enter the lexicon of some decision makers. These tactics undermine the objectives of Government to create certainty and clarity for developers and investors in the ‘bricks and mortar’ retail sector, which is a real worry in this fragile economy.

    In years gone by this issue would have been flushed out very quickly through consideration of retail schemes at public inquiry, but the slow death of the retail development market has meant that this issue has not been properly aired.

    In the meantime the general advice* is simple. If there is no local threshold or a proposal falls below it, do not be co-erced into submitting a retail impact assessment or even a document of similar effect with a different title, it can only bring problems down the line.

    *For advice on any specific projects we would be happy to provide detailed advice!



  • I’d like to accord with the Development Plan – but what is it?

  • Local authority planners, have oft been criticised for being out of touch with the communities they are supposed to be planning.   This criticism is well founded in some regards.

     

    Take development plans.  In the good old days, unless you were metropolitan enough to have an unitary borough, each area had a strategic (structure) plan and a borough or district local plan.  Both had proper OS maps that you could view and establish exactly what policies or allocations applied to your property or site.  Every five years these plans would be reviewed and the new plan would replace the old.

     

    Fly forward to the modern day.  I have just finished trying to make sense of a town where the original Local Plan is now out of date except for certain, apparently random policies “saved” in 2007; the list of which I found on a single A4 sheet hidden on the Council’s website. 

     

    There is a more recent core strategy, which has a proposals map but it is too small to make any sense of individual sites, and development briefs prepared in line with the Core Strategy which conflict with the Local Plan proposals map. 

     

    The Council is also preparing a Part 2 Local Plan of which there is a submission version and a series of amendments, but no consolidated document of what it looks like now.

     

    Then there is a Neighbourhood Plan that far from being the positively worded document it was intended to be, seems to say no to any development that fails to take the area back to 1950.

     

    Finally, we have our friend the NPPF and the randomly organised, printer unfriendly Planning Practice Guidance which appear nowhere on Council websites yet inevitably fill the voids left between these rather random development plan documents.

     

    If professional planners struggle with this minefield, how do those without any planning training? 

     

    Planning decisions are required to be able to be read and understood on their face, without reference to extrinsic material unless exceptional circumstances apply, and yet as far as development plans go, it is only with the extrinisic information that you can make any sense of the Development Plan.

     

    Online local plans that weave together all relevant plans are helpful but far from the norm, unfortunately.  Nor do authorities generally make any effort to explain the inter-relationship between documents on their websites.  

     

    While interpreting development plans continues to be a game that only a select few can play, it is hardly going to be the inclusive planning system that Government wants.

     



  • No need, no go.

  • Has Welsh Government's love of the anachronistic retail "need" test finally killed the retail development market in Wales?

    The struggling retail development and investment market in Wales has been dealt another blow this week in the judgment of the Court of Appeal in Waterstone Estates Limited v Welsh Ministers and Neath Port Talbot County Borough Council [2018] EWCA Civ 1571.

    This judgment has brought into focus just how divergent, and comparatively difficult, national retail policy in Wales has become from that in England and brings into serious question whether there now is any future for retail investment and development in Wales.

    The case

    The case centred on the provision of roadside services adjacent a trunk road, just beyond the defined settlement limit of the village of Glyn-Neath. The proposal was refused by the local planning authority on various grounds and then refused at appeal by an Inspector on the basis, inter alia, that the identified need for new retail had already been met upon a backland site adjoining the village centre, well away from the highway.

    The decision and the case that followed brings into focus the concept of retail need in a development management context.

    In England, the need test was abandoned in 2009 following the2006 Barker Report into the Planning System commissioned by DCLG that concluded that a retail need test is not fit for purpose in a development management context. At Paragraph 1.31 of her final report, Ms Barker advised:

    “ Policy revisions are also desirable to ensure that developments are not turned down on
    inappropriate grounds. It is not the role of local planning authorities to turn down
    development where they consider there to be a lack of market demand or need for the
    proposal. Investors who are risking their capital and whose business it is to assess likely
    customer demand are better placed than local authorities to determine the nature and scale of demand. Imposing requirements to demonstrate need in this development control context, as presently occurs in PPS6 is unnecessary, as well as adding to costs (needs tests can cost upwards of £50,000 each on top of planning fees and other documentation).”

    She added at 1.13:

    “This is particularly important as the current system of needs tests in town centre first policy
    also can have perverse effects: it protects incumbents and gives preference to operators that have lower sales densities. These incumbents may be operating in out-of-town shopping centres, leading to the effect that if need is demonstrated and there is no impact on the town centre, an existing out-of-town shopping centre could expand while there is no application for a sequentially preferable site in the town centre. Furthermore, incumbents may find it easier to expand incrementally while prospective local entrants fail at any one time to demonstrate sufficient need for a one-off increase of space. The needs test should therefore be removed.”

    Despite this damning indictment of the need test, Welsh Government has persisted with including and indeed strengthening the weight to be afforded to this test through its revisions to Planning Policy Wales (“PPW”).

    The Court of Appeal’s judgment centered on two matters, but in terms of retail the key question before it was whether the need test was a “gateway” test that had to be satisfied before considering the sequential test and impact; or merely one of a number of tests. Lord Justice Hickinbottom concluded at paragraph 74 of the judgment (which was agreed by Lord Justices Davis and Singh): “In my view, those paragraphs clearly indicate that, in the context of planning applications, there is a discrete requirement for need to be established which, if not satisfied, is a breach of PPW policy.”

    He added at paragraph 77, in respect of PPW paragraph 10.2.12 which states “If there is no need for further development for retail and commercial centre uses, there will be no need to identify additional sites” applies equally to development management.”

    At paragraph 78 he added: “Looked at broadly and in its proper context, in my view paragraph 10.2.12 firmly indicates that, outside centres, need is a discrete requirement for planning applications; and, if it is not satisfied, then there is no requirement (or “need”) to proceed to consider whether there is any sequentially preferable site.”

    The judgment also considered the issue of what “need” the test referred to, since plainly the proposal was for a roadside services area that all parties accepted could not reasonably be sited at the allocated village centre site. He opined at paragraph 84 :

    “However, first, as Mr Buley powerfully submitted, “suitable” in paragraph 10.2.14 must mean suitable for general retail use because, in that paragraph, it is applied to plan-making as well as decision-taking on an application, and Mr Lewis accepts that, for in the context of plan-making, that is the accepted (and only sensible) meaning. It must have the same meaning in respect of each of those functions….”

    In this respect he then went further to distinguish this approach from that adopted in England and Scotland:

    “That meaning is clearly not the same as that used in the three English and Scottish authorities relied upon by Mr Lewis. I do not consider that those cases assist on the issue of construction of PPW: they concern the construction of different national policies that apply in England and Scotland.”

    In his postscript to the judgment he added in paragraphs 89 & 90:

    “As a result of the construction of the PPW which I consider to be true, it may well be that policy relevant to need on an application for planning permission for retail use in Wales is significantly different from that in England. That is not surprising, given the devolved nature of town and country planning. It is to be expected that, over time, planning policy and substantive law will increasingly diverge. The Planning (Wales) Act 2015, section 3 of which inserts a new section 60 into the 2004 Act requiring the Welsh Ministers to prepare and publish a National Development Framework for Wales, is only likely to increase the pace of change in Wales.

    I emphasise that Mr Lewis, who is highly experienced in planning matters in Wales, did not for a moment suggest that there should be an assumption that planning policy in Wales is the same as in England. This case is a further reminder as to how dangerous such an assumption might be.”

    Effects

    The overarching effect of this judgment cannot be underestimated for the retail development sector. Many Welsh local planning authorities have, recognising the “perverse effects” that Barker identified could arise when applying a theoretical need approach to development management, adopted a pragmatic approach of considering the need test “in the round” when determining retail applications. Such pragmatism is essential in a dynamic retail market and where many development plans are now either long in the tooth or entirely absent and local planning authorities have been reluctant to update their retail evidence base due to swingeing budget cuts.

    It seems that once again therefore, local planning authorities in Wales may be hamstrung in applying common sense by poorly drafted Welsh Government policy. This policy was, even when drafted by the boffins in Cathays Park, a clumsy attempt to jump on the populist bandwagon to stop the growth of large supermarkets in the early 2000s. As demonstrated in this judgment, this policy has simply failed to keep up with the retail sector’s changes, to the detriment of investment and new job creation.

    The retail development sector in Wales was on life support before this judgment. Outside of Cardiff, Wales has not been on the radar for substantive retail investment for some years. By having a planning framework now demonstrably more onerous than England, we are becoming even more of an investment backwater.

    It is beyond ironic that this policy does not apply, and therefore did not stop Amazon securing permission, in the same planning authority of Neath Port Talbot and apparently in under a month, for new warehouse to support its growing internet retail operations - Operations that now represent the biggest threat to the high streets of Wales.

    Unless Welsh Government steps up to the plate to change its approach immediately, I fear that retail developers and investors will abandon Wales altogether. Of course, when you take this approach together with draft changes to TAN1 for housing, it does seem that stopping development is perhaps Welsh Government’s underlying objective.

    The judgment’s postscript also underscores the need for those developers brave enough to still pursue retail development in Wales, and their advisers, to understand just how different the planning system here now is.



  • 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.