Monday 4 November 2013

What a Lark! – Pickles Refuses Solar Power Appeal (With apologies and commiserations to the applicant)



Being a jobbing planner is tough enough at the best of times. All those procedures and policies, government guidance, validation requirements and material considerations to have regard to, whilst at the same time trying to secure a meaningful planning permission for the client at a cost that doesn’t involve a raid on Fort Knox.

So, you’d be forgiven for thinking that - with the Government pushing the Green Energy agenda as the new nirvana and seemingly allowing humongous wind farm developments on every upland moor, with many more rapidly encircling our coastline – a ground level solar farm would be a bit of a shoe-in, an easy day in the office. But no!


A recent appeal decision that was recommended for approval by the Inspector has been ‘recovered’ by Eric and dismissed. WHAT?


The appeal was made by Lark Energy against the decision of Waveney District Council to refuse the installation of a 30MW solar farm and associated infrastructure.

The site previously formed part of the operational area of Beccles Airfield. Some overhead power lines cross part of the site and the immediately local area contains a variety of uses; including agriculture, industrial premises on parts of the airfield, flying/parachuting activities, a go-kart track and a scatter of dwellings.

I know it. I’ve been there. Nice enough, but not exactly the depths of England’s rural idyll.

The Secretary of State agreed that the main issue was whether the benefits of the scheme, including the production of electricity from a renewable source, outweighed any harmful impacts, having particular regard to the effect upon the character and appearance of the countryside, including the likely impact upon the Hundred Tributary Valley Farmland Landscape Character Area. Suffice to say that the whole thing turns on the extent to which the development would impact upon the character and appearance of the area.

I’m not going to recite the whole thing here as you can read the Inspector’s Report and Eric’s justification for yourself [See Link Below]. The Secretary of State agreed with virtually everything the Inspector concluded. He agreed that there would be no harmful impact upon the Norfolk Broads and the Suffolk Coastal Area of Outstanding Natural Beauty. He also agreed that the harm to the character of the district within a kilometer of the northern, eastern and western boundaries of the northern part of the appeal site would be no greater than that of a permitted scheme, which had already been accepted by the Council.

The Secretary of State agreed with the Inspector that the harm to the character and appearance of the area would not amount to significant adverse effects but, nevertheless, considered the effect on the character of the site, although limited, would be adverse.

I wonder when Eric made his own site inspection? I presume he did. Or how could he reasonably come to such a conclusion; given the Inspectors’ detailed reasoning and recommendation for approval.

And now we get to the nub of the issue, the Secretary of State also noted that, “the impact upon the character and appearance of the area is a concern raised in representations made by the local community (IR64). In line with paragraphs 5 and 8 of the Guidance, he has carefully considered these representations and has given weight to them in his determination”.

You bet he did. Pickles' recently issued guidance on renewable energy requires that the need for renewable energy should not override the views of local people and concerns over landscape and heritage.

With a General Election looming on the horizon (between the sweeping arms of multiple turbine blades no doubt) and Localism failing to gain real traction, with Local and Neighbourhood Plan coverage still years away, the decision could be nothing more than a political sop to the locals. Not even a subtle one.

The real problem is that for future schemes the character and appearance test implied by this decision is going to be a very tough one indeed. By seemingly setting the guidance benchmark so high, it is likely that solar power schemes will have to be buried before they are considered acceptable.

Yet by virtue of the same Government push for alternative energy we have our countryside littered with massive - often non operational - turbines and our urban character seriously degraded by ill considered and incongruously fitted solar panels. Go figure?


To read the whole decision go HERE

Thursday 12 September 2013

Don't Delay - Implement those Planning Permissions or Risk Losing Them

The Parliamentary Under-Secretary of State for Communities and Local Government (Nick Boles) has indicated that the coalition Government have taken a series of steps to ensure a streamlined, easy-to-use planning system. A number of statutory instruments to make planning practice swifter and simpler are being laid this week.

Appeals

Reforms are being introduced from 1 October 2013 that mean that appeal decisions can be taken sooner, while ensuring the process remains fair.

A new commercial appeals service, closely modelled on the successful householder appeals service, will introduce an expedited procedure for some minor commercial appeals such as those relating to advertisement consent or shop fronts, allowing decisions to be made in only eight weeks.

These moves will "front-load" the appeals system by requiring appellants to submit their full statement of case when they appeal, and at the same time submit a draft statement of common ground for hearings or inquiries.

Local planning authorities will need to notify interested parties within one week, and submit their own case within five weeks. The Planning Inspectorate will set earlier dates for hearings and inquiries.

Where appeals are allowed, development will be able to commence sooner, bringing forward much needed jobs and growth. 

Planning Permissions

In October 2012, a temporary measure that was introduced by the previous Government to enable applicants to seek more time to implement a planning permission was extended by 12 months. This temporary measure will not be extended further.

To complement the £1 billion Government are investing to get stalled sites moving again and help to reduce the 60,500 sites that are currently on hold this measure will encourage developments to start on site promptly once planning permission is granted. So when the current extension expires at the end of the month, you will have to implement any latent planning permissions or risk losing them and having to start all over again. 

There are a number of other minor measures but these two key changes bear consideration, particularly the removal of extension opportunities. 
 
If you require advice on outstanding planning approvals or future planning appeals then do please contact me.

ianbutter@ruralurbanplanning.co.uk    Tel: 07860 684604

Sunday 18 August 2013

What Are - Informatives on Planning Decision Notices



 Notes to Applicants or Informatives are often to be found on planning decision notices but what are they and how do they relate to the decision notice?

In Slough Borough Council v Secretary of State for the Environment and Oury [1995] the Court of Appeal said: "The general rule is that, in construing a planning permission, regard may only be had to the permission itself, including the reasons stated for it."

Circular 11/95 (on Conditions) records how informatives can remind an applicant to obtain further planning approvals and other consents.  They can be used to draw the applicants attention to certain matters and no more. The Circular’s underlying message is clear - informatives should not establish mandatory requirements with which an authorised development must comply.  They may be used as non-binding best practice, but lack a statutory basis.  Planning Conditions, on the other hand, may impose mandatory requirements for the carrying out of development and have statutory authority.

The decision and its reason(s) is the primary document with the informative no more than that;  non-binding additional information.

However, in ‘Slough’ the Court recognised a limited number of exceptions to this rule.  Extrinsic material may be taken into account if the permission expressly incorporates it, if the permission is incomplete, is not self-contained or is ambiguous on its face.  This might be the case if an informative contradicts a condition attached to the same permission, for example.

The question then is whether this permission could be challenged on the basis of the Notes being contradictory?  It may be possible to construct an argument to that the decision is ambiguous and that the notes/informative forms part of it.  However, since the statutory definition of planning permissions makes no reference to informatives, a Court might struggle to accept that view.

In R (oao Wall) v Brighton & Hove City Council [2004] a decision notice contained an informative.  It stated that the decision to grant permission had been taken having regard to all relevant material considerations - but did not identify those considerations.  In upholding a legal challenge and quashing the permission, the High Court held that, even if the information is complete, including it within an informative does not satisfy the separate obligation to give reasons for both granting planning permission and imposing conditions. Here is was necessary to have included a condition(s) to formally support the decision.

In Fisher v Wychavon District Council Court of Appeal (9 November 2000) it was concluded that there was an intention, discernible from the notice itself, that there should only be a temporary grant of planning permission, although it could not be said for how long due to ambiguity in the notice; which gave rise to the reason for the challenge.  It therefore became impossible for the court to strike out all references to a temporary consent so as to leave a permanent consent. The condition that the permission should only be temporary, for the reasons stated in the approval notice, could objectively be seen to be of fundamental importance to the council in making the grant and could not be deleted.

“The court may be particularly disinclined to perform feats of surgery where an invalid condition is one of the terms on which a discretionary power is exercised. If an invalid condition is attached to a licence or to planning permission, the permission without the condition may be such as the licensing authority would not have been willing to grant on grounds of public interest. The right course for the court is then to quash the whole permission, so that a fresh application may be made.”   

So Informatives are just that. They are designed to draw attention to other matters of import but do not have a direct bearing upon the decision notice, unless there is clear and evident ambiguity. Even then, it may only give rise to a decision being quashed. You are probably better off re-applying if you really need clarity.



Saturday 10 August 2013

Greater flexibilities for change of use - Consultation Published

In their continuing programme for wholesale change of the Town Planning system the Government have now published a consultation document on further changes to Permitted Development Rights.

The proposals are:
  • To create a permitted development right to assist change of use and the associated physical works from an existing building used as a small shop or provider of professional/financial services (A1 and A2 uses) to residential use (C3);
  • To create a permitted development right to enable retail use (A1) to change to a bank or a building society;
  • To create a permitted development right to assist change of use and the associated physical works from existing buildings used for agricultural purposes to change to residential use (C3);
  • To extend the permitted development rights for premises used as offices (B1), hotels (C1), residential (C2 and C2A), non-residential institutions (D1), and leisure and assembly (D2) to change use to a state funded school, to also be able to change to nurseries providing childcare; and
  • To create a permitted development right to allow a building used for agricultural purposes of up to 500m2 to be used as a new state funded school or nursery providing childcare.
The changes proposed in this consultation document will help make better use of existing buildings, support rural communities and high streets, provide new housing and contribute to the provision of child care for working families.

Consultation on these proposals go on until the 15th October 2013 and further details can be found HERE.

 

Friday 28 June 2013

Labour Don't Know their Planning Acts from their .....But I have a Cunning Plan

Last weekend Labour Leader Ed Miliband spoke to the National Planning Forum in Birmingham and, amongst many other things, suggested that there should be a 'use it or lose it' policy toward those dastardly housebuilders who are not building out their sites and are therefore solely responsible for the economic woes of this country. He said:

"Across our country, there are land-owners with planning permission, sitting on land, waiting for it to accumulate in value and not building on it.
We have to change that.

Including giving councils real power to say to developers that they should either use the land or lose the land".

Hmm. Hold on their Ed m' lad (why do I keep hearing Pitt the Younger in that  'Rotten Borough' episode of Black Adder) isnt that a bit like shooting the golden goose?

And anyway, if he had bothered to read Section 94 of the Town & Country Planning Act the powers are already there. Section 94(2) states:

"If the local planning authority are of the opinion that the development will not be completed within a reasonable period, they may serve a notice ("a completion notice") stating that the planning permission will cease to have effect on the expiration of a further period specified in the notice". 

Such a period must not be less than 12 months after the notice takes effect.

So authorities across the land could serve completion notices like confetti right now on all those uncompleted housing sites and apply the 'use it or lose it' principle at no real cost to the authority.

In 35 years of practice I have never seen this power (which has been around for all that time) put into practice. Why not? The concept is fundamentally flawed primarily because it is self defeating. We would effectively switch off all those sites that have been carefully curated in Local Plans to deliver to the raft of planning and development criteria . Where's the sense in that?

There is no point using a big stick to beat up anyone who doesn't deliver on a promise that they never really entered into in the first place. If that principle applied the Government should rightly be threatening to shut down our car industry for failing to sell sufficient new cars, or our our high street retailers for not selling enough 'stuff'.

Well, as Baldrick was prone to saying 'I have a cunning plan'.

Up to now both this and the previous Government have been stressing the desire to 'get the housebuilding sector going' and to kick start the economy by building for the future'. Clearly failing to realise that it is not the housebuilders fault per se, but the fact that people cannot afford to buy new (or any) houses because they have all just been made redundant and/or can't get a mortgage from any bank; even if their first born were handed over in part-ex.

Housebuiders like to build houses. That is their raison detre (the clues' in the title). But having bought land at the top of the last economic cycle, spent the annual budget of a small nation state to secure planning permission and set aside another substantial 'wedge' for all that Community Infrastructure Tax Levy, let alone the cost of building any houses in the first place, it is not surprising that the average developer wants to recoup some of that cash in order to remain solvent. Or am I being just a silly old liberal planner here?

We want affordable housing, and lots of it. Not solely social housing for rent, but houses that people can actually afford to buy. That gets them on the housing ladder. That may become their pension scheme in the longer term!

So what we really need is affordable 'market' housing. OK so far? 

Why not make a provision in planning that a proportion of the 'affordable housing' element of most modern planning permissions can be provided as 'affordable market housing', instead of just handing over 35% or more of the land value to a Housing Association. 

I'm sure there would be a clever contractual (Section 106?) means of ensuring that house prices reflect local purchasing capabilities (we sort of have that now anyway) for a period of years so that the properties remain 'affordable' for sufficient time and then can be released to move on up the value ladder, whilst more affordable market housing comes up behind to replace it. 

We know from the '£60,000 House' competition of a few years ago that good quality houses can be built down to a price. So let's enable the developers to get clever (subject to the usual design and planning controls), whilst they can also make a small turn on their investment, rather than look at the affordable housing quota as a cost to recover from the remainder of any housing scheme.

The developers would have something practical to go at, the banks could justify more flexible mortgages secured against properties with a defined value, and the Government would receive the approval of a public who could begin to return to an ownership model whilst also revving up the development sector.

Just a thought.