Restrictions on power to impose planning conditions - a commentary

S 14 of the Neighbourhood Planning Act 2017

Most planning conditions are based on either:

requirements to comply with policies, or

unstated policies that require the LPA to satisfy itself about this issue or that one

Many requirements are basically reasonable. Most have been hijacked by either:

LPAs to provide reasons to refuse applications;

or

pressure groups, quangos and special interest groups, to use to pursue their own agendas.

The only way to persuade an LPA or inspector, that a potential problem has been solved, or does not exist, is to submit a report by a professional expert in that field. Common sense does not cut it, so no use writing a report yourself. Nor will an LPA staffer move from his seat to actually have a look. So conditions come down largely to the requirement for reports, followed by the condition that follows.

The provision of multiple reports is the greatest cause of cost and delay in the planning process. In this article, I will explain to anyone outside the system how it now works and offer simple solutions which would increase the number of houses built.

1. S 14 of the Neighbourhood Planning Act 2017 inserts a new S100ZA into the Town and Country Planning Act 1990. It gives the Minister powers to make regulations to prevent an LPA from imposing planning conditions. The words give the impression that the power is very limited, but I think it is really very wide.

The Minister is limited to making regulations which follow the present requirements in S122 of the Community Infrastructure Levy Regulations 2010, for “qualification” of a such a requirement in connection with a S106 agreement.

The Minister must carry out a public consultation before making any regulation. That will cause delay but will provide an opportunity for discussion.

The subject of planning conditions is also noted in the White Paper “Fixing our Broken Housing Market” as a major cause of problems. It is.

2. S 14 also provides:

“(5)  Planning permission for the development of the land may not be granted subject to a pre-commencement condition without the written agreement of the applicant to the terms of the condition.”

Again, there follow qualifications and conditions. The effect will certainly be for the common good however, because an LPA will be compelled to disclose conditions at an early stage rather than simply giving the applicant a nasty shock when it receives the consent paper. This provision should also compel the parties to discuss, and maybe agree on areas which otherwise would become the subject of appeal.

3. Taken in the round, this section changes nothing until the Minister decides she/he wants to make something happen. Meanwhile para 2.26 at page 41 of the white paper elaborates:

“Tackling unnecessary delays caused by planning conditions

2.26 We will tackle unnecessary delays caused by planning conditions by taking forward proposals, through the Neighbourhood Planning Bill, to allow the Secretary of State to prohibit conditions that do not meet the national policy tests, and to ensure that pre-commencement conditions can only be used with the agreement of the applicant.”

So it would seem that the Government does intend to use the new powers imminently.

4. Next, I will explain how the system works now. An LPA’s requirement for reports is often excessive. We need to. This is a good time to consider an overhaul the whole system.

Reports, requirements and box ticking

5. The single greatest disincentive to a small company in looking for land, particularly for small sites, is the horrific requirement for reports. It works like this:

5.1. Brussels notices a decline in blue-throated blackbirds in Transylvania, so issues an EU wide edict that every development throughout the 28 member states, shall provide special nesting boxes and habitat protection for those birds, no matter how common they are in a particular location.

5.2. In the UK, said birds are so abundant as to be a pest, but Natural England happily accepts the responsibility to “gold plate” the requirement.

5.3. No LPA can afford to employ someone specifically to guard these birds, so the obligation is passed to applicants for planning permission.

5.4. Every planning application has to be accompanied by a £5,000 professional report with proposals to care for these birds.

5.5. Applicant appoints expert, discusses proposals and awaits report.

5.6. Provided the report appears to come from an expert, supported by enough apparent qualifications, planning officer ticks box and makes a note to add a planning condition that applicant shall comply with expert recommendations.

5.7. Developer has to make a profit somehow. Prices rise.

5.8. More people are unable to afford a house.

6. For a development on one hectare, an LPA could require up to twenty reports, costing a minimum of £3,000 each. Like most good ideas, the problem is not that developers are compelled to take sensible action, but that the level of compliance and enforcement of regulations has become outrageous. “Reports” are simply a weapon used by some LPAs to prevent development. This is clear from the “responses” by those LPAs. Here are some examples of how reports are required:

6.1. Historic England is a quango. It exists for all of us but is accountable to no-one. We pay for it. They have an inter-active map showing recorded archaeological finds across the country. Now how difficult would it be for them to expand this record by adding descriptive text and coloured zoning like the flood risk maps provided by the Environment Agency?  Maybe they could even provide a simple desk report assessing a one hectare site, for £250? Instead, in many districts, even a small builder has to pay for a dig and reports, which then have to be submitted to the county authority, who might require their own expert to comment. That takes weeks. Sometimes of course, there is an important find, which must be disclosed immediately. So when all the bills are paid, the land owner and/or developer will have paid out an enormous sum of money and lost two years. Here, it is the uncertainty that is the killer for a small builder.

The answer to this problem is not to ignore the possibility of buried history. We need to assess the chance of what may be below the surface, then decide whether we need to dig it up now or leave for another generation of archaeologists. However, we should not indulge the whim of archaeologists thirsty for knowledge today. If we do not disturb it, it will save. So far as such knowledge is shared on television, it is fascinating, but we need to keep a sense of proportionate benefit. It should be about accountability and reasonableness.

6.2. Take a transport assessment. This is one of the most important reports. We cannot afford to get it wrong, because lives are at risk. But for a small site, do we really need a 40 page document costing £10,000? Of course not. That is what we are expected to produce. When it gets to the County Highways department, it falls to a teamer to check it for accuracy. I have never come across a highways engineer saying that less is required. That is not their job.

6.3. Just one more example - views and vistas. Here we have a far more sensible starting point. The Landscape Institute and the Institute of Landscape Management and Assessment jointly publish “Guidelines for Landscape and Visual Impact Assessment” (“GLVIA”). That is the professional bible. If you read it, it patently clear that those two institutions intend to provide a methodology for assessment. They are not quangos working to protect every attractive view in England. The GLVIA provides a very clear analysis of this difficult subject. They even warn against “over-egging” the value of landscapes.

A judgement of landscape is inevitably subjective to some extent, but I maintain that rural LPAs use protection of “landscape” to restrict development everywhere. Every country lane is “idyllic”. An unkempt hedge is a “treat”. If there are no hedges, then we enjoy “long views” (over industrialised agriculture). Five trees become “delightful copse”. If there are trees around the entrance to a settlement they “provide a gateway and a transfer from the countryside to the community”

Landscape melds with heritage buildings to prevent development on the edge of every community with a conservation area - even where not a listed building can be seen.

The existence of a cycle track or playing field is a heaven sent opportunity for an LPA to point out that the users will suffer from reduced amenity if a view 500 metres away now includes ten new houses. As a cyclist myself however, I am certain that most of us are interested in our changing environment, not in lamenting that inevitable change.

At appeal, expensive experts exchange reports and notes arguing relative merits of anything that already exists - even if it was built only ten years ago. This requires the inspector to laboriously decide on the merits of the reports and make sure she/he has covered every stupid point. Of course, every inspector is aware of this issue and methodically deals with it. However, the time of inspectors has great value too. Just because we do not see the cost, we all pay it nonetheless.

7. The white paper continues:

“A strategic approach to the habitat management of protected species

2.27 House-builders have identifed the licensing system for protected species such as great crested newts as a significant impediment to timely housing delivery. Natural England and Woking Borough Council have piloted a new strategic approach which streamlines the licensing system for managing great crested newts – the species which particularly affects development. The Government will roll out this approach to help other local authorities speed up the delivery of housing and other development.

Certainly every developer will welcome no longer having to fund a team of eco-warriors to race up and down the motorway with sirens blazing to carry Mummy and Daddy Great Crested Newt to their new home.

8. While these probable changes will be welcome, they are only the tip of the reports and conditions iceberg.

We can improve the planning conditions system

9. Why do both sides even need to produce 50 page reports, much of which is not read more than once by either side? Here, I offer an idea for a thorough shake up of the “reports” system which could save a vast amount of time and money. I suggest these ideas will work well, used side by side with the S14 proposals.

10. First, consider this. Each report is drawn as a one-off by a very highly educated person working on a high hourly charging rate.  If we can reduce the hours, we can reduce the cost of a report.

11. Second, we can look at what reports are needed. Some, like ecology and heritage, cover a variety of issues. We should not have to provide information on non-starters.

12. What we will do is break down the subjects - yes increase the number for around 20 to around 50. We say the LPA must ask only for reports which are (reasonably) likely to be relevant to the site in question. The LPA must give a reason. That way, the planning officer must apply her/himself to considering the actual site. That is what the applicant pays for when he sends in the planning fee, after all.

13. The number of policy areas applicable to a particular scheme would relate to the size, content and importance of the scheme. A detached house in an in-fill plot may require four reports; 200 houses with a connection to a trunk road might need 20 - 30 reports. By breaking down the subjects, it will be easier for an LPA to justify what is important because the general stuff is excluded.

14. Transport is a life or death issue for all of us, so if a transport report is really needed, of course it must cover requirements fully. However, we can still specify levels of detail required. If you want to build ten houses in a village, you should not need a report on the effect of the nearest motorway.

15. The length of each report should be limited and a summary provided. 60% of most reports is concerned with descriptions of the proposal and the law. Instead, an avian report on a one hectare paddock could be covered in 1,000 words. Methods of protecting a species in danger are well known. It should be possible to refer to protection proposals on some authoritative website.

16. So, the applicant still has to provide multiple reports, but they are simpler and each addresses a particular, known concern of the planning officer.

17. The applicant should be given the reference of the person dealing with each professional area handled by the county and permission to negotiate directly on any of those issues. That cuts out the middle man syndrome.

18. Professional specialists should be persuaded to stop presenting reports where the first 60% does no more than tell the story. That is a difficult one. A small contribution might be for the Ministry to produce a series of compulsory templates for small schemes.

19. The provision of very short reports would concentrate the minds of applicants and leave an inspector with a far simpler task. The avian expert would still need to visit, photograph, measure and so on. Requiring a shorter report would not alter that. But it would save many hours of debate and consideration as we plough through megabytes of verbiage as we seek the nub. That is my suggestion for the reports.

20. My second proposal is as follows: we should reinforce the rules on when a losing side pays costs. In a court of law, at any time during the process of bringing a case to trial, a judge can order one side to pay the costs of the other for a stupid error. Those are “wasted costs”. Even when a case is lost, the winner will not get his costs insofar as they are excessive or unreasonable.

21. In a planning case, by contrast, costs are awarded rarely and never cover the full cost of a winner’s case. All we need to do is to move a little closer to the courts version by providing that when an inspector says a report was unnecessary, the LPA pays for it. Every LPA is as hard up as you or I. This could be extended to other areas too, again as it works in a law court. We need to keep everyone on her/his toes when we are wasting time and money.

22. As soon as it costs more to pay the costs than to get the job done properly, things will change. What is more, no historic building will be damaged as a result and no great crested newt will die of anything except to satisfy a hungry heron.

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