Revocation of The Regional Strategy for Yorkshire and Humber

This week is the week that The Regional Strategy for Yorkshire and Humber (RSYH) will finally be revoked. 

The first attempt at revoking Regional Strategies took place in July 2010 and was successfully challenged in court by Cala Homes.  An express power to revoke Regional Strategies was subsequently included in the Localism Act 2011.  However the revocation process has been delayed by the carrying out of formal consultation and Strategic Environmental Assessment in relation to the proposed revocation of each Regional Strategy.

RSYH will be revoked on Friday 22nd February 2013 with the exception of specific policies relating to the York Green Belt.  RSYH is the second Regional Strategy to be revoked following the revocation of the East of England Regional Strategy on 3rd January 2013.

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Modifying Section 106 Obligations

In August 2012 we highlighted the Government’s proposal to relax the circumstances in which s.106 planning obligations could be modified or discharged.  The aim is to boost the economic recovery by kick starting developments burdened by planning obligations which render them unviable.

Section 106A of the Town and Country Planning Act 1990 currently permits applications to modify or discharge planning obligations (with the right of appeal) only where the obligation is over five years old.  In all other circumstances modification or discharge relies upon the co-operation of the local planning authority.

The Town and Country Planning (Modification and Discharge of Planning Obligations) (Amendment) (England) Regulations 2013 will come into force on 28th February 2013.  These Regulations will enable applications to be made to modify or discharge planning obligations entered into on or before 6 April 2010.  

Applications can be made at any time after 28 March 2013 provided the obligation is not five years old before then (if it is then an application can be made anyway).  There will be a right of appeal against any refusal or non-determination of an application. 

The new provision will sit alongside the provisions in the Growth and Infrastructure Bill which will enable applications to be made for the reduction or removal of section 106 obligations relating to affordable housing on the grounds of economic viability (with an associated right of appeal).  The Bill is currently before the House of Lords and should receive Royal Assent by the middle of this year.

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Sustainable Presumption Trumps Prematurity

Latest appeal decisions demonstrate that, even for LPA’s with adopted or emerging local plans, it will be harder to assert their primacy in the face of the presumption in favour of sustainable development. Mr Pickles is no longer inclined to reject applications on the grounds that approval would interfere with preparation of a local plan. Plan preparation is not a justifiable excuse for not having a five-year supply of housing land. This is evidenced in his approval of two unallocated sites comprising 1000 dwellings at Bishop’s Cleeve Gloucestershire. At the same time he approved 350 dwellings at Worsley, Salford. Although the site did not accord with Salford’s 2006 development plan this was outweighed by lack of a five-year land supply. In Cheshire an application for 150 dwellings on the edge of a village was approved. The Council accepted that it had a land supply of less than three years but in its emerging Core Strategy the village was included in a rural area judged suitable for only limited new development. Its claim that allowing the appeal would set an undesirable precedent and pre-empt future decisions on the scale and location of housing was rejected. 1150 homes on unallocated Greenfield land were allowed at Lytham Saint Annes given that land supply was only for 1.4 years and the draft Core Strategy was unlikely to appear before 2014. Elsewhere in Lancashire an Inspector allowed an appeal on 83 houses on Greenfield land. The Council had asserted that the appeal site would prejudice its ability to bring forward a comprehensive development of 1500 dwellings on land including the site. Moreover the scheme was premature the pending adoption of a site allocations development plan document. The Inspector noted that land supply was down to 3 years and that applications should be considered in the context of the presumption in favour of sustainable development.

A Leicestershire Council argued that a village-edge site for 111 dwellings was away from the main built-up area of Leicester and extensions to it. Another site expected to receive permission would provide an extension of 4000 dwellings. The Inspector considered that allowing the appeal would not undermine the objective of building most new houses in larger urban areas. In Wokingham 274 houses were allowed on a site give a housing land shortfall. The Secretary of State held that the proposals fulfilled an economic role by providing land to expand housing quality and choice, a social role by providing market and affordable housing to meet identifiable needs and an environmental role by providing open areas and parks.

A decision on two sites providing 1000 dwellings in Gloucestershire affords an insight into the Secretary of State’s thinking. The proposal, he said, was in a relatively sustainable location though development here would conflict with countryside policies. Lack of a five-year housing land supply was crucial, which an emerging development plan was unlikely to rectify in time. He observed that objectors might see allowing the appeals as undermining the democratic process. However, he stated that changes to the planning system giving communities more say over development in their localities carried with them the responsibility to ensure local plans were prepared expeditiously to make provision for future needs.

Until most LPA’s have up to date plans in place more and more housing appeals are going to be allowed on the basis of the presumption in favour of sustainable development and the absence of a five-year land supply in the current but increasingly outdated local plan. LPA’s need to concentrate on plan-making in order to ease their planning appeals workload in the longer term.

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Soundness Revisited

Under the National Planning Policy Framework (NPPF) the presumption in favour of sustainable development will apply where a local plan is absent, silent or its relevant policies are out of date, unless the adverse impacts of applying the presumption significantly and demonstrably outweigh the benefits.  This means starting from the proposition that the full, objectively assessed needs for housing, employment development, retailing and other aspects are met.  The presumption in favour of sustainable development checks whether the plan positively seeks opportunities to meet development needs of the area and whether it meets objectively assessed needs with enough flexibility to adapt to rapid change.

Government guidance on soundness was issued in PPS12 (Local Spatial Planning) in 2008 and reaffirmed in this year’s NPPF, which supersedes the earlier guidance notes.  Already evidence is accumulating on how the Planning Inspectorate are treating DPD’s, in applying the test of soundness, since the NPPF was published.  Plans for Barnet and Taunton have been judged sound.  So too has the joint plan for Preston, South Ribble and Chorley.  Here the Inspector initially found the plan unsound because he was not convinced that the submitted plan delivered enough housing land at the right time in the right places.  The authorities then revised the housing element, increasing the number of strategic locations and sites.  In judging the revised plan sound, the Inspector had identified 7 main issues upon which soundness depended:

  1. Whether the Local Plan vision and proposals for sustainable growth are clear, effective, deliverable and consistent with all national policy.
  2. Whether the Local Plan provides satisfactorily for the delivery of developments, particularly its required infrastructure, and convincingly demonstrates adequate monitoring of its provision and measures designed to rectify any shortcomings.
  3. Whether the core strategy is effective in meeting local housing needs, including the provision of an appropriate mix of housing of suitable quality and at suitable densities.
  4. Whether the Local Plan is effective in meeting special housing needs, including affordable homes, accommodation for the elderly and for gypsies and travellers.
  5. Whether the Local Plan’s approach to economic development is clearly articulated, sufficiently justified and in line with national policy.
  6. Whether the Local Plan convincingly sets out the role of Preston City Centre, suitably protecting and enhancing its vitality and viability without serious detriment to other town centres, and whether suitable provision for other centres is being made.
  7. Whether the Local Plan provides sufficient protection, preservation and enhancement of the built and natural environment and introduces measures of sufficient force to mitigate any potentially adverse effects upon these interests.

By contrast, the core strategies of Wigan and Hull have been declared unsound and their examinations suspended for 6 months.  At Wigan the Inspector expressed significant doubts about its attempts to demonstrate an adequate supply of deliverable housing land.   Responding, the Council are examining scope for extra sites in the heart of Wigan, further developments in outer areas and greenbelt release.  The same issue arose in Hull where the Council, in responding to the Inspector’s concerns about housing land undersupply, has pointed out the role that market weakness has played in under-delivery.  Meanwhile at Rochdale the Council has withdrawn its core strategy from the examination process and is to start again following the Inspector’s questioning of a proposal to make a major deletion from the greenbelt and plans to build a new link road to the M62.  At Torfaen the Council has withdrawn its development plan from examination after the Inspector questioned the Council’s later decision to delete a strategic housing site from the plan.  York recently withdrew its core strategy from the examination process after the Inspector raised significant concerns regarding the delivery of housing under the emerging strategy.

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Sound as a Pound

The Planning and Compulsory Purchase Act (2004), as amended by the Localism Act (2011), states that the purpose of independent examinations is to ensure that Development Plan Documents (DPD’s), whether core strategies or not, meet legal and procedural requirements, including the duty to co-operate with neighbouring Local Planning Authorities (LPA’s) and the test of soundness.

This test of soundness comprises four parts, as set out in the overarching National Planning Policy Framework (NPPF) published this year.  First the plan must be positively prepared, “based on a strategy which seeks to meet objectively assessed development and infrastructure requirements, including unmet requirements from neighbouring LPA’s where it is reasonable to do so and consistent with achieving sustainable development.”

Second it might be justified, founded on a robust and credible evidence base.  The plan “should be the most appropriate strategy, when considered against reasonable alternative based on proportionate evidence.”

Third it should be effective, defined or “deliverable over its period and based on effective joint working on cross-boundary strategic priorities.”  Flexibility is vital, together with evidence of sound infrastructure planning.

Finally, the plan should be consistent with national policy: any policies or proposals inconsistent with national policy must be identified.  It “should enable the delivery of sustainable development in accordance with the policies of the NPPF.”

Essentially the framework makes clear what DPD’s will not be found sound at examination unless they are fully informed by the presumption in favour of sustainable development.  “Sustainable means ensuring that better lives for ourselves don’t mean worse lives for future generations.  Development means growth.” So said the former Minister of State for Communities and Local Government, Greg Clark, in his foreword to the Framework.

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Another Nail

Not only is the Planning Inspectorate taking on the extra responsibility on s.106 agreements; at a time when it is under pressure from the surge of local plans coming to Inquiry, two further assignments are proposed.  Firstly, where Local Planning Authorities (LPA’s) have a track record of consistently poor performance in the speed or quality of their decisions the Inspectorate will step in to determine planning applications.  Secondly, new categories of commercial and business development will be brought into the nationally significant infrastructure regime run by the Inspectorate.

By any measure, in constantly changing planning circumstances, the Inspectorate does a good and timely job, but it will require additional staff resources to carry out the extra functions adequately.  Clearly both measures are transferring power from localities to the centre, in contravention of the much-publicised localism agenda, but many observers will conclude that localism has already been discarded in all but name.

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Green Belt Review

The latest comments on Green Belt by Government do not signal a change in policy or procedure, despite some comments to the contrary.  Already some conservationist bodies are alleging that Green Belt policy is undermined.  All the Government is doing is asking Local Planning Authorities (LPA’s) to review Green Belt extent where justified by circumstances.  This has always been the case and was re-affirmed in the admirably succinct Green Belt section of the recent National Planning Policy Framework.  DCLG are saying that they will priorities Local Plan examinations where LPA’s have revised Green Belt extent.

It is open to LPA’s to make deletions where overwhelming housing or commercial requirements demand this.  This is happening, for example, in Bradford Metropolitan District and around Cambridge.  LPA’s are free to add Green Belt whether or not this is meant to compensate for a deletion.  The Chancellor is advocating these Green Belt swaps and the re-development of damaged or developed land lying within Green Belts.  Government needs to realise that Green Belts are not primarily for conserving swathes of countryside, but for protecting relatively narrow bands of land on urban edges in shaping settlement patters.

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