The London Green Belt Council Notes: Issue. 128 January 2002 (slightly edited)

DTLR Consultation Papers

The DTLR has just issued four major consultation papers on 'Delivering a fundamental change' on:

• Planning
• Major Infrastructure Projects,
• Compulsory Purchase and Compensation
• Reforming Planning Obligations

There is an impression that fundamental change is in the air. Press speculation has included various alarmist forecasts of what is in store. Although it may not be as bad as predicted, the chatty style and repeated emphasis on the importance of consultation and participation make one suspect the worst. It is noteworthy that the emphasis throughout is on the needs of business, not the environment.

Free copies of these important papers can be obtained from the DTLR free distribution service in Wetherby on 0870 1226 236. The deadlines for comments and addresses are given for each paper below.

Summary

The four papers taken together indicate a substantial loosening of controls, apparently primarily to placate commercial interests and, maybe, the Regional Development Authorities. From the LGBC point of view the fourth one could possibly have the most insidious effects, though that may well be a matter of opinion. Moreover, the papers seem also to have been issued with an eye to forthcoming devolution to regions, though the intention that the S/S should retain ultimate powers to intervene on policy grounds seems clear enough. Whether or not there is really a threat to green belt will emerge as PPGs are revised, but you might think that it would be wrong to wait for that to happen before taking action. When the LGBC does make comments, by whatever means, we should seek to assess the likely situation as a whole as well as commenting on each paper separately.

Planning - Delivering a Fundamental Change

1. The emphasis is on business and community engagement (which seems to mean something much wider than public consultation). There is also stress on the need for better enforcement against those who avoid planning controls.
2. A Local Development Framework will replace the present framework of Structure Plans, Local Plans, or UDPs. It would contain the planning authority's vision, strategy, and core policies; detailed action plans for smaller local areas; and a map showing where proposals will be. Action plans will be mainly about planning for local areas, but some "may need to be prepared on a topic basis which cover a wider area to show, for example, Green Belt boundaries or other area-based designations".
3. The County role in planning will disappear, except for minerals and waste plans, because many of the issues cut across county boundaries. County Structure Plans will be abolished. There will be only regions and districts, though the paper asks for comments on whether the counties should assist either of those.
4. The role of regional planning authorities is being built up - see below. Regional Planing Guidance will be replaced by regional Spatial Strategies (RSS). But who will produce the latter? The paper says 'regional planning bodies will be charged with producing the RSSs and they should ' demonstrate that they are representative of key regional interests. Groups comprised solely of local authorities will not be acceptable. The preparation of the new RSSs will be a partnership process and we expect the steering group in charge of producing the RSS to include RDAs and representatives of the public, business, and voluntary sectors'. Dare one ask who appoints the steering group?
5. It gets confusing because the RSS is meant to guide local planning authorities in producing their plans, having eliminated the counties from the process. But the paper says 'after the public examination the S/S will seek to implement and recommendations arising [? From the plan or from the public examination] except if they are inconsistent with national policy or if they adversely affect another region'. There is no change in the arrangement involving the Mayor of London.
6. The arrangements have an eye on forthcoming directly elected regional government ' where the predominantly unitary local government is established'. A forthcoming White Paper will give the specific functions that might be undertaken by regionally elected assemblies
7. All PPGs and MPGs will be reviewed. "We will ask whether they are all needed". "Our aim is to seek much greater clarity in the expression of planning policy and.... [from a different paragraph] not cloud [the PPGS] with ancillary material and detailed instructions on how policies are to he delivered". The re-evaluation will start with PPGs 1 (General Principles), 4 (Industrial and Commercial Development and Small Firms), 6 Town Centres and Retail Development), 7 (The Countryside) and 15 & 16 (Historic Environment and Archaeology). PPG5 (SPZs) will probably be withdrawn.

There will also be fundamental changes in the system for planning control:

1. A system is needed which 'is responsive to the needs of all the customers and offer a new culture of customer service; delivers decisions quickly in a predictable and transparent way; produces quality development; and genuinely involves the community".
2. Various measures are proposed for customer care between a planning authority and its customers - check lists, one-stop shops ( to avoid applicants having to go to different addresses for permissions covering different aspects of one scheme), and improving the speed and effectiveness of the system generally. Under the last heading are proposals to stop repeated similar applications, twin-tracking of applications and reducing from five years to three years the period after which consents lapse if they are not implemented. Planning authorities should give reasons for approving applications as well as reasons for rejecting them. The S/S will do the same.
3. Among the alarmist predictions before the paper was issued was one that all decisions would have to be made by officers. In fact, the paper says is 'To speed up decision-making, authorities should delegate decisions to officers as far as practicable. To encourage the process we have set for 2002/2003 a new target of delegation of 90% of decisions to officers, which will be monitored.". And elsewhere: 'Elected members must be allowed to reject their officers' advice: it is the councillor not the officers, who are answerable to their elected".
4. More controversial are new proposals concerning compulsory purchase of land for major projects - for which see the third paper reported below.
5. The paper asks whether Permitted Development Rights should continue to be defined nationally or whether local authorities should be allowed to define them their own in order to cut red tape for developers. LGBC think central definition is essential to ensure consistency.

The above items are not comprehensive. DTLR want comments on this paper by 18th March 2002, to Planning Green Paper Responses, DTLR, Eland House, Bressenden Place, London SW1E 5DU. The product code for the document is O1PD0785.

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Major Infrastructure Projects -. Delivering a Fundamental Change

See the item in the last issue of Notes. This paper is less controversial than the planning one above, but it will certainly be relevant to current problems in some of our members' areas. At present major infrastructure projects are processed under various Acts according to their nature, and this can be very time consuming and expensive. The paper aims to simplify the procedures and to increase opportunities for the public to make objections, not least to the location of proposed projects. Major infrastructure projects include airports, thermal and nuclear power stations, reprocessing plants for nuclear fuel, overhead electrical power lines, inland waterways, dams and reservoirs, dual-carriageway trunk roads on new routes, tramways, long-distance railway lines, oil refineries, chemical installations, pipelines, quarries, etc. Most of these categories are further defined in terms of size, etc, below which they are not considered as major.

On the assumption that it is right for Parliament to have the opportunity to approve (or reject) such projects in principle before detailed issues are examined at a public inquiry, the main proposals are:

1. An up-to-date statement of Government policy to be issued, usually before Parliament debates the issue, that statement itself to be the subject of prior public consultation
2. Once Parliament has approved a scheme, details to be examined at a public inquiry, at which views can be expressed on the details but not the principles. The terms of reference of the inquiry will be tightly drawn and inspectors will not allow the inquiry to stray outside them;
3. Parliamentary approval will not in itself convey planning permission for a scheme. That will be for the S/S in the light of the inquiry. He could reject a scheme that Parliament had approved in principle, but that is expected to be exceptional.

The proposals are to be seen in the context of 'an improved regional framework which will assist consideration of individual projects (e.g. through the revised arrangements for regional planning guidance)", and of new arrangements for compulsory purchase and compensation as to which see below.

The paper gives detailed proposals to speed up the timetable of announcements and the procedures at the public inquiries. Points include the following -

1. Whereas existing procedures under the Transport and Works Act are usually initiated in response to a request by the applicant (except where the S/S decides that national security or public safety are concerned), the intention in future is to give the S/S much more flexibility to initiate the procedures involving Parliament himself Moreover it is clearly stated that the new proposals "are not expressly confined to matters of national significance". In my view, this will be an improvement, as it could prevent developers of ambitious schemes with implications over an extensive area from trying to get them through a local public inquiry covering only the area in which the actual works were situated. The paper deliberately does not propose a procedure for enabling the S/S to exercise these powers, as that would involve extra delays: he would intervene at his own discretion and without prior consultation. Of course, that would not prevent people or organisations from lobbying for such intervention.
2. The proposed timetable would be:
3. (i) six weeks for representations to the S/S once he has announced that the Parliament" procedure would be appropriate; as soon as possible after they are received, the S/S will send copies to Parliament, so as to "ensure that the entire range of views is available to Parliament collectively rather than to rely on individual lobbying of particular peers or MPs";

   (ii) not less than three weeks into the six-week period the developer must let the S/S have a statement of "the wider and other economic benefits of the project', and the S/S will send copies to each House of Parliament;

   iii) the S/S will also supply a summary of individual objections and representations not less than 14 days after the deadline for their receipt by him (this in addition to the individual copies forwarded under (i) above).

4. New inquiry procedure rules for major infrastructure inquiries will be published early in 2002. (NB: The DTLR sent LGBC the draft for comment, and they seemed unexceptionable).

The deadline for commenting on this paper is 22nd March 2002. Comments should go to Fiona Emslie, DTLR, Development Control Policy Division Floor 4/J1, Eland House, Bressenden Place, London SW1E 5DU. The paper's product code is O1PD0884.

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Compulsory Purchase and Compensation: Delivering a Fundamental Change

The paper says that there are widespread misinterpretations and misunderstandings of the present extremely complex legislation and practice on compulsory purchase. Much of it is based on (sometimes conflicting) case law, and many authorities are in the position that staff who once understood the subject have moved on leaving a void behind, so that authorities are slow to move in case they get things wrong. There appears to he a general agreement that there is a great need for simplification and updating of both law and procedures.

The Government therefore intends to adopt many of the recommendations of a Compulsory Purchase Policy Review Advisory Group (CPPRAG) which has been studying the subject in depth. The Law Commission is also undertaking studies on how to modernise the law on the subject. The situation is apparently chaotic despite the intention to move quickly in both these fields, and the recent issue of five new advice pamphlets and a new procedure manual and guide to the existing system. It is still felt necessary to issue a new circular to local authorities shortly advising them how to work the existing system.

The law has no specific application to green belt, but land acquired under compulsory purchase powers could include green belt land. If the purposes for which it was being acquired (e.g. assembling a land holding for an industrial complex) involved a change of use which would affect green belt, that change would presumably have to be tackled under ordinary planning processes.

Much of the 90-page document consists of an explanation of the background to proposals and the Government's response to the recommendations of the CPPRAG report referred to above. It is difficult to comment, not being familiar enough with the present position, but comfort can be taken from the fact that to judge from the paper, no-one else is either. It is not easy to work out what extra powers the Government proposes to take, as opposed to clarifying and simplifying what ought to be the present practice. Nevertheless a few points emerge which you should study if compulsory purchase of land by local authorities might become an issue in your area. Here is an attempt to highlight some of these matters:-

a) The paper says "powers for the compulsory acquisition of land are set out in hundreds of public or private Acts relating to a wide range of bodies"; and "the powers no longer fully reflect the range of reasons for which authorities need to be able to exercise compulsory purchase in order to be able to achieve the proper planning, development, and redevelopment of their area'. The Government therefore proposes to make radical changes by defining "a full range of planning and regenerative purposes, including halting the physical, economic and/or social deterioration of an area, for which compulsory purchase powers can be used. It will clarify and amend the law with regard to the justification required for the exercise of compulsory purchase powers for planning purposes". It will include "powers to acquire land needed to instigate adverse effects of public works. That is not defined in the paper, though it may be in the CPPRAG report.

b) Authorities contemplating compulsory purchase powers will still have to show that the public interest needs the authority to acquire the land, and that that need outweighs consideration of private rights. Three ways of doing this are mentioned, and suggestions are invited for others. There should be an indication that a scheme can attract sufficient financial support to enable it to go ahead, e.g. through formal endorsement by the Regional Development Authority following appraisal. One option, by designating a site in a local action plan, ominously says "If the proposals for rapid adoption and review of such plans proposed in the green paper are adopted this would provide an obvious means of establishing a clear rationale for the compulsory acquisition".

There are also extensive proposals for a new, clearer, and fairer compensation code. The paper comments that the current arrangements "are based on case law, which means that they are diffuse and inconsistent'!

Comments by 27th March 2002, to Mike Sheehan, Compulsory Purchase Consultation Team,, DTLR, Zone 4/J1, Eland House, Bressenden Place, SW1E 5DU. The paper's product code is 01PD0932.

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Re-forming Planning Obligations - Delivering a Fundamental Change

The statutory power relating to Planning Obligations is in 3106 of the Town and Country Planning Act 1990, as amended by 312 of the Planning and Compensation Act 1991. The obligations include restricting the development or use of land in various ways, or "requiring a sum or sums to be paid to the authority on a specified date or dates or periodically".

The thrust of this paper is that planning obligations have been used too much in a negative way, to mitigate what might otherwise be undesirable effects of a planning consent. The Government wants them to be used more positively as a tool to help achieve planning objectives. The emphasis "should be refocused to deliver sustainable development .... social, economic and environmental benefits to the community as a whole". Chief among these is affordable housing. Another criticism of the costing arrangements is 'lack of accountability, with contributions not necessarily being used for the purposes for which they were originally sought'.

The pros and cons of four options for reform are set out. They are:

1. enforce the present system more strictly, particularly as regards ensuring that an obligation has a direct relationship to the proposed development. The disadvantage is said to be that that would be too restrictive;
2. allow authorities to negotiate whatever arrangements they wish. The disadvantage is that it would increase inconsistency between authorities, and could tempt them to increase contributions to the point of pricing out a development's viability;
3. abolish planning obligations and substituting "impact fees", according to a table. This would provide more certainty for developers but less flexibility for local authorities. Evaluating the impacts on which the fees are based is very difficult e.g. how does one evaluate loss of landscape? Five different types of impact fee are discussed;
4. The Government favours this one, under which local authority development plans should set standard tariffs for different kinds of development, the income to help meet a range of planning objectives. Separately negotiated planning agreements would be exceptional.

The paper asks for comments on ten specific matters, the first of which is "Do you support refocusing of the planning obligation systems around the objective of sustainable development?". Surely the first question of amenity organisations should be whether they support changing the whole emphasis from protecting and enhancing site-specific environmental considerations and facilities to a sort of general tax or contribution in favour of 'Sustainable development' (whatever that means), particularly affordable housing. The proposed process seems to divorce the contributions from the site in question, and it is surely the specific site and its surrounds that most concern local residents and amenity interests. In thinking about this remember that under existing arrangements, planning obligations can be used to help green belt. Para. 5. 14 of PPG2 reads "Planning obligations may be used to offset the loss of or impact on any amenity on a site prior to development on that site (see DOE Circular 16/91). Where amenity on a site adjacent to green belt is lost as a result of development on that site, it may be reasonable for obligations to provide for offsetting benefits on land in the green belt, as long as there is a direct relationship between the two sites".

Comments to the DTLR by 18th March 2002, to Paul Martin, 4/J4, Eland House, Bressenden Place, London SW1E 5DU. The product code is O1PD0982.