Category: Uncategorised

No need, no go.

July 12th, 2018

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?

January 11th, 2017

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

April 12th, 2016

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!

February 25th, 2016

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?

February 11th, 2016

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

November 26th, 2015

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).

So, what’s the use?

August 12th, 2013

We planners like things to be orderly. Forget shades of grey – the majority of planners (and particularly those in local authorities) seem to see things as black or white. To such people, then, the use classes order (UCO) is veritable manna from Heaven. With one stroke, just about any activity can be classified into a simple series of categories, from where policy judgments can be made about the acceptability of said use.

An A3 take away use in a key shopping (A1) parade? That’ll be in conflict with the policy to protect town centre frontages, then. An A1 foodstore in an industrial estate zoned for B1, B2 & B8 uses? That’ll undermine employment land supply and be contrary to employment policies.

It sounds straightforward and logical, but alas as time has moved on, the use classes order in Wales has not kept up with those activities people want to undertake.

Trade counters are now a key element, and some would say critical element, of modern industrial estates yet often do not fit squarely into the B8 use class. Since the change in the licencing laws, many pubs have evolved into drinking establishments with a dance floor. It is left to fact and degree to determine at what point such a use becomes a nightclub or a mixed use. These are just illustrations of where the UCO has failed to keep up with the modern Wales.

In a pragmatic world, the application of sensible judgment to the slightly antiquated UCO ought not to present any problems. After all, national guidance in Wales is now underscored by the objective that economic development ought to be supported, even if it means flexing a bit on other considerations.

It is disappointing then that too many Welsh authorities continue to blindly apply the policies of their development plan to specific use classes, regardless both of national guidance and the reality of the circumstances before them.

Yes, that shop unit may be in an established parade, but it has been vacant for three years, detracts from the character and appearance of the area, costs the landlord empty rates and creates no local employment. Is a café in such circumstances really something to be resisted?

That industrial estate may be identified for traditional employment uses but isn’t zoning an area for employment all about the jobs, at the end of the day? It doesn’t take a genius to see that major new industrial and warehousing investment in the Principality comes along about as frequently as Halley’s Comet, so perhaps the jobs arising from a supermarket ought to be given some weight in the planning balance?

The current consultation on the new TAN for economic development in Wales presents an opportunity for the Welsh Government to underscore the need for a pragmatic approach towards use classes where jobs and investment are at stake. More fundamentally, however, the Planning Bill presents a real opportunity to provide a use classes system in Wales that reflects modern day land uses.

So will WAG show us that it is committed towards a flexible and responsive planning system that meets the needs of today? If it does not, then it surely it ought to be classified as sui generis. Of no particular use.

Let’s hide.. It’s The Bill…

July 17th, 2013

The First Minister for Wales, Carwyn Jones AM has announced that the Planning Reform Bill will be published before the summer of 2014.

The announcement was brief:

“It will deliver a step change in our planning reform agenda and build on the established planning system. It will do this by setting out new roles and responsibilities for Welsh Ministers, local authorities, developers and communities.”

Even this brief review of what is in store raises some eyebrows. There was a hope and expectation amongst many in the profession that Wales was going to have a completely new system that responded to Welsh issues and was not burdened by some of the cumbersome elements of the existing system. That the bill will “build upon” the established system suggests that it will be far less innovative and may simply be more cumbersome,not less. It is also a concern that the focus on new responsibilities implies even more red tape, not less.

All in all, then, not a particularly illuminating or encouraging announcement. We must however give the First Minister the benefit of the doubt for the moment. There will be a White Paper sometime in the next six months, and that will be the true test of whether the Welsh Government is serious about change or just serious about being seen to be serious.

Is this view too cynical? Judging by the other key ‘planning’ related legislation programmed for the coming year, there is perhaps some justification. The First Minister also announced yesterday that the Sustainability Bill was to be renamed. He said:

“During this consideration it became apparent that the Government needed to better communicate the purpose of the Bill – calling it the Sustainable Development Bill did not provide that clarity of purpose. As a result, the working title for this legislation will now be the Future Generations Bill. “

Only the bureaucrats in Welsh Government could see this as providing any form of clarity!

Is sewage infrastructure blocking the flow of new housing delivery?

July 10th, 2013

The pro-development approach of the NPPF has helped to bring about rapid new growth in housing development in some parts of England. This resurgence is involving sites, more often than not, in locations that are not allocated for housing, or indeed any development.

This can, in some places, put new pressures on infrastructure and the planning system has its ways and means, through CIL (for the moment!) and Section 106 agreements, to address these impacts.

One area of infrastructure untouched by such measures, however, is the local sewage network.

Section 106 of the Water Industry Act 1991 places a duty on water authorities to accept new connections to their sewage systems. Their ability to reject such connections is limited to very specific circumstances, such as where the connecting pipe does not meet the requisite standards.

The practical effect of this is therefore that, on payment of a relatively low fixed fee, a developer may connect to a mains sewer regardless of whether the sewer system has the capacity to accommodate the additional flows.

The water authority therefore has no means of stopping the system becoming overloaded. Of course, if it does get overloaded and foul water escapes from the sewage system, the water authority is liable of a criminal offence under Section 85 of the 1991 Act and European law.

The duty to make sure that the system can cope with the demands placed upon it falls squarely on the water authority.

Section 94 of the 1991 Act requires water authorities to provide, improve and extend the system of public sewers so as to ensure that the area is effectually drained.

Unless drainage works are required to serve a single development alone (rather than, say, improvement of existing mains infrastructure) the cost of such improvement works falls on the water authority itself.

Given that this almost certainly involves new infrastructure and considerable spending, forward planning of requirements is essential.

In this regard, the development plan identifies anticipated housing growth and locations and the SHLAA will give some clear indication of likely housing pressures for the future. We are told that the water authorities take all of these into account in their infrastructure plans – so if housing is in the planning pipeline, then there should be the pipelines to accommodate it.

The housing growth that we are seeing at the moment is however, to a significant extent, not in locations anticipated by development plans and so in many places the infrastructure plans are inadequate or out of sync with actual development.

Insofar as the water authorities have no real powers themselves to stop or delay development, the planning system has, in some locations, stepped in to assist. This is typically done through Grampian conditions that require there to be sewage capacity to be demonstrated before new houses are occupied.

Eminently sensible, one might say. Except of course that the effect of such a condition is in all too many cases, a ransom position in the favour of the water authority.

They are described as “authorities” but the reality is of course that they are private companies with a duty to make profits for their own shareholders. They have no real interest in delivering new housing or the jobs that it brings or any particular desire to be forced into building new, un-forecast sewage infrastructure that will impact on forecast profit levels. They cannot be criticised for that – it is the logical effect of their privatisation all those years ago.

What is more concerning is that the water authorities have become increasingly aware of the position of power they hold in respect of large planning applications and seem to be seeing this as a lucrative new revenue stream.

Knowing that a Grampian condition is a real problem for housing developers, most water authorities now charge fees of several hundred pounds for telling you what existing capacity levels are at. One would really have thought they would have such data at the tips of their fingers.

If that is not bad enough, if it is determined that there is a shortfall in capacity, they will charge many thousands of pounds to scope out what works are required to address it.

In such cases the water authorities know that developers won´t and can´t just take a Grampian condition and sit and wait for them to undertake the necessary improvements to the sewage system. Instead, a simple choice is presented – the developer pays to get the improvements early, or the development can´t go ahead.

At no stage does the duty under Section 94 of the Act, for the water authorities themselves to meet the local drainage needs, seem to come into play.

To some, this is a pragmatic way of bringing forward new infrastructure at the cost of those who will benefit from it. To others, it looks like pure and simple cash generation by greedy water companies.

Whatever your point of view, this disconnect between development aspirations and certainty of mains sewage infrastructure presents a major blockage to the actual delivery of much needed housing.
Some local planning authorities have shown their mettle by refusing to impose conditions on new development requiring sewage capacity to be demonstrated.

The stark choice for the water authority in such circumstances is to bring forward the necessary improvements or face overflow problems and the fines that will result. However, that local authorities should have to risk sewage overflow to get the water authorities to act is not exactly a vote winner with the electorate.

It is clear that government has to take a look at this and find a more workable, efficient and cost effective means of delivering the sewage infrastructure required for this new wave of development that it is encouraging. Sewage is not something that one can brush under the carpet, Mr Pickles.

Development Plans – Is it time they joined the dodo?

March 11th, 2013

The development plan has been the cornerstone of planning decisions for as long as most people can remember. As students we were always taught that the development plan and planning decisions were inseparable – a mantra reinforced by successive changes to legislation that have placed development plans as the starting point for all decisions.

Yet in recent years the development plan seems in many places to have lost its place on the desk of development control officers. That’s not to say that development plans have ever been a ‘must read’ for development control planners – in our experience, many planners outside of local plan departments have never really held much regard for the development plan. However, as development control officers have moved into a new era of development management, the disconnect has become more pronounced.

The criticisms of development plans are well rehearsed, but still worth repeating. Despite protestations from the Clear English society, most plans remain woolly, cut and paste jobs of badly worded national guidance but with inferior grammar. Not current national guidance, of course. As development plans take an unfeasibly long time to prepare they are typically inconsistent with prevailing national guidance within weeks of being published.

The strength of development plans ought to be in providing a clear steer on local development. However, all too often the assessments of employment land, retail need and housing numbers upon which they are based are woefully out of date. Even when they are not, they often display a dazzling ignorance of the real world. Almost every development plan zones vast areas of land for inward industrial investment despite the fact thateven our indigenous manufacturing is on the wane. Virtually no development planin the country identifies areas for trade counters and car garages even though they form a significant part of our traditional industrial areas. Large sites continue to be allocated for bulky goods retailing when anyone in the industry will tell you that in many regions of the UK there is now significant oversupply of space for such activities.

The lack of commerciality indevelopment plans and in some development plan departments is truly astounding. Indeed, the only commerciality that seems to stray into the ivory towers of local plan departments these days seems to be where local authority land is concerned. That the local authority owns a site apparently makes it ideal for all sorts of valuable development.

So where does the effort in preparing local plans go? I am sure that there are some officers working incredibly hard behind the scenes to put these documents together. However, one really has to question the balance of effort expended between the content and the branding, inane photographs and translating the index into multifarious languages. While there has always been a question mark over the realism of development plans, prior to the 2004 Planning and Compensation Act there was at least the opportunity to bring areality check to the plans through cross examination of local plan officers and objectors at local plan inquiries.

The fear of having to defend policies at inquiry against the onslaught of a rabid QC was a sure-fire incentive to make sure that the policies and allocations of a plan were written with a semblance of sense. It was bloody and painful but the end result was a plan that, at least for the few months following its adoption, could be said to be reasonably realistic. If the Local Plan inquiry was Schwarzenegger then the LDF / LDP process that came in following the 2004 Act was Mr Muscle. On a bad day.

The Local Plan system was a no holds barred investigation into whether the draft plan was the best that could be achieved. The LDF system (Yes I know it has been renamed, but it is still the LDF to many..) starts with the assumption that the draft plan is the best that can be achieved and challenges objectors to prove that it isn’t “sound”. Pure Sir Humphrey. With some limited exceptions, the choice for the Inspector is accept the plan, kick part of it out or kick it all out.

In other words, the Inspector’s role is now not to facilitate delivery of the best plan for an areabut to test whether the plan is bad enough to be binned. In my experience of the’new’ system Inspectors and objectors do have a fair stab at scrutinising the local planning authority’s case. It is however a poke with a tickling stick rather than the cleaving of the broadsword of the previous system.

The result is that many of the plans coming through the system are not a sound platform for future development but glossy brochures of meaningless, anodyne drivel that is out of date the day it is published and woefully out of touch with either what business and developers or local people want and need. The yawning reality gap leftby development plans is now being filled, in England, by neighbourhood plans. Despite the requirement that a neighbourhood plan complies with the development plan for an area, in those areas where they are being progressed you would be forgiven for thinking that they are designed to replace it.

It seems then that the development plan in its current form is an endangered species – and while development plans officers remain in their ivory towers oblivious to the real world around them, it is not a species that many people outside of local plans departments are particularly keen to protect. Unless something is done quickly to make the development plan system up to date, relevant and realistic, then it is surely headed the way of the dodo.