Stuart Andrews, Eversheds LLPApril 2013The national planning frameworkPractical planning
IntroductionStuart AndrewsHead of PlanningPartner for Eversheds LLPDirect dial: 0845 497 1272Mobile: 07768 070453www.eversheds.com
ContentThe national planning policy framework- the local plan- planning by appeal- some unforeseen consequencesNationally significant infrastructure projects- meeting the requirements- managing risk- some unforeseen issuesLegal update- town and village greens and other cases- community infrastructure levy- legal challenges
“… piecemeal reform of theplanning system is simply not anadequate response. Only a radicalreboot is going to deliver theplanning system that we need tosucceed in the years to come.”(Open Source Planning)
The NPPFThe role of “national policy”Plan making- Section 19(2)(a) Planning and CompulsoryPurchase Act 2004 - regard is to be had tonational policy- Section 20(5)(a) 2004 Act – need for soundness (and soconsistency with national policy - NPPF para.182)Development control- Section 38(6) Town and Country Planning Act 1990 is retained -the development plan retains statutory force- National policy is an “other material consideration” (TCPA section70(2))
What do you think will be the best way toengage with the planning system for theforeseeable future?a) active engagement in the plan making process?b) through community/parish groups in the preparation ofNeighbourhood Plans?c) at appeal?d) challenges through the Courts?e) sitting it out and waiting for it all to change again?f) don’t know.
The presumption in favour ofsustainable development• Significant weight should be placed onthe need to support economicgrowth through the planning system(para 19)• Economic, social and environmentalgoals should be sought jointly andsimultaneously (para 8)• Investment in business should not beoverburdened by the combinedrequirements of planning policyexpectations (para 21).
Promoting local plansThey should set out strategic priorities by:- plan positively for 15 years and keepplans up to date based on co-operationwith neighbouring authorities;- they should use a proportionateevidence base with up to date andrelevant evidence about economic, socialand environmental characteristics; and- ensure their assessments of housing andemployment are fully integrated, takinginto account market and economicevidence (para. 158).
Will Central Government pressure forceintransient and politically motivated localauthorities to robustly plan for housing andeconomic growth in their area, even if theneed for such development is generatedelsewhere?YES or NO
Promoting local plans• Duty to co-operate on policy issuescrossing boundaries, particularly strategicpriorities.• Public bodies have a duty to approvedevelopment that accord with thedevelopment plan without delay.• Public bodies have a duty to approvedevelopment where the development planis absent, silent or out-of-date, unlessadverse impacts significantly anddemonstrably outweigh the benefits
Is the Duty to Co-operate doomed to failureand will it mean that many Local Plan’s willfail to be found sound because of differingpolitical and strategic objects betweenurban and rural authorities?YES or NO
Recent developments• West Berkshire - Report on the Examination intothe Core Strategy dated 3 July 2012• Rushcliffe - Examination into the Soundness of theCore Strategy Development Plan DocumentInspector’s letter dated 27 November 2012• Tetbury – Appeal by Fay & Son Ltd at HighfieldFarm, Tetbury, Gloucestershire dated 13 February2013 (APP/F1610/A/11/2165778)• Cheshire - Fox Strategic Land and Property Limitedv SoSCLG and Cheshire East Council  EWHC444 (Admin)
How do you think the system could beimproved?a) restoring a system of Regional Planning?b) go back to sub-regional planning/Structure Plans?c) the publication of Central Government targets?d) further reforms to simplify the system?e) directives from Government making clear the risks of non-compliance?f) set some key national constraints and deregulate everythingelse to local planning?
PART TWONationally significant infrastructure projects
• Reservoirs, water transfer (10mcm or 100mcm/year) (not yet in force);• Any sort of electricity generation (50MW onshore/100MW offshore);• Electricity transmission lines (132kV);• Gas storage, LNG, gas reception (43mcm or 4.5mcm/day);• Pipelines (40km (gas), 10 miles (other));• Roads (various);• Railways (when expanding from the existing railway corridor);• Harbours (5m tonnes);• Airports (10m passengers);• Rail freight (60ha);• Waste water treatment (500,000 people);• Hazardous waste (30,000 tonnes/100,000 tonnes); and• Transfer or storage of waste water (350,000m3).NSIPsPlanning Act 2008
• The new types of developments that could be consideredunder the NSIP system include:- Offices and research and development facilities;- Manufacturing and processing proposals- Warehousing, storage and distribution;- Conference and exhibition centres;- Leisure, tourism and sports and recreation,including sports stadia;- Extractive industries (mining and quarrying) includingproposals for deep mined coal and onshore oil and gasextraction; and- Mixed-use development including, for example, mixed-usebusiness parks.NSIPsThe growth and infrastructure bill
• National policy statements (“NPSs”) establish thecase for NSIP development.• NPSs set out the national need for infrastructuredevelopment and set the policy framework for DCOdecisions.• Promoters must ensure that proposals are properlyprepared and consulted on before they submit anapplication.• Decisions will be based primarily on the NPS,through a streamlined examination process.• Questioning at hearings will be led by Inspectorsrather than being adversarial.NSIPsThe process
• Drift - Daventry International Rail Freight Interchange:notification of decision not to accept application dated 28November 2012• HS2 bill - Decision of the High Court in R (on theapplication of HS2 Action Alliance Ltd and others)-v- Secretary of State for Transport & High Speed TwoLtd  EWHC 481 (Admin).• Preeshall – Decision of the Secretary of State relating tothe refusal of the proposed Saltfield Underground GasStorage Facility in Lancashire (File Ref EN030001) dated9 April 2013• Milton Keynes - Decision of the High Court in R (RWENPower Renewables Ltd) v Milton Keynes Council EWHC (Admin)NSIPsRecent developments
• Town and village greensNewhaven Port & Properties Limited v East SussexCounty Council  EWHC 647 (Admin)• Section 106 agreementsWestminster City Council –v- Secretary of State forCommunities & Local Government  EWHC690 (Admin)• EvidenceWainhomes (South West) Holdings Ltd v Secretaryof State for Communities & Local Government EWHC 597 (Admin)Legal update
• Extending the date from 2014 to 2015 for the pooling of s.106• Allowing payment of CIL in kind with infrastructure• Greater flexibility over payment, particularly for large schemes• Allowing site preparation before CIL is triggered• Scrapping the occupancy test so that all existing floorspaceis offset• Simplifying and extending affordable housing relief• Amending the exceptional circumstances relief• Reinforcing the evidence tests for CIL setting and amendingrules relating to Regulation 123 infrastructure lists to providemore clarity and commitment to delivery.Legal updateConsultation on community infrastructure levy
• Amendments to the Civil Procedure Rules, governing casesconducted in England and Wales, bring into force a new cost-capping regime for litigants in environmental-related judicialreview claims.• The rules, introduced on 1 April, cap the costs recoverable by adefendant from a claimant in such cases at a maximum of £5,000where a claimant is an individual, and at £10,000 in any othercircumstances.Legal updateLegal challenges
"I mean, bluntly, there comes a question in life - do you believeplanning works, that clever people sitting in a room can planhow peoples communities should develop? Or do you believe itcant work?“I believe it cant work, David Cameron believes it cant, NickClegg believes it cant. Chaotic therefore in our vocabulary is agood thing.”ConclusionNicholas Boles, Planning Minister