Planning update

Localism Act

The long-awaited Localism Act hit the statute books this month, although not all of it is in force as yet. The political buzzword of 2010 was 'big society', and, with the epigram 'the time has come to disperse power more widely in Britain today', the Act is seen as the embodiment of big society. To achieve those goals it is necessarily a diverse piece of legislation setting out a series of measures with the ostensible objective of achieving a substantial and lasting shift in power away from central government and towards local people.

There are four main pillars to the changes being introduced: new freedoms and flexibilities for local government; new rights and powers for communities and individuals; reform to make the planning system more democratic and more effective; and reform to ensure that decisions about housing are taken locally.

Although the Act received Royal Assent on 15 November 2011, only a handful of sections were immediately brought into force. A few more will automatically come into force on 16 January 2012. The remainder will not apply until brought into force by the government, which has indicated many major measures will have a commencement date of early spring 2012. Key sections are shown in the box.

What is not yet in force, but could come about quickly, is the revocation of regional strategies. The procedure for doing so (which lay at the heart of the Cala Homes litigation) is what is holding up the commencement of this provision, but the government is firm of purpose that it will abolish that tier of planning policy as soon as it is able to do so.

Regional strategies provided the focal point of centralised planning in the sense that they provided the targets for matters such as total housing numbers to be provided in the region over the plan period. Decision makers have already been told to take account of the government's intention to abolish them, but to continue to have regard to the data upon which those targets were formulated.

Without those targets, the development industry is grappling with what alternative evidential base it should look to in order to make applications for planning permissions. The existing development plan documents that operate at individual planning authority level is the obvious answer, but many plans have struggled to get far along the path towards adoption.

Next comes neighbourhood plans, part of the Localism Act's new measures, but these are only at their earliest stages and are geographically patchy, so do not presently provide any sort of reliable framework.

Balancing this apparent vacuum is the draft National Planning Policy Framework. Already being afforded weight in decisions, it looks for there to be a presumption in favour of sustainable development and for decisions to be made where local development plans are out of date or non-existent. The following item about the Cala Homes appeal shows that reliance on these extracts from the NPPF is not presently sure ground for developers.

Localism in action?

Readers will recall the litigation undertaken by Cala Homes against the attempted revocation of regional spatial strategies. That litigation was brought by Cala in support of its planning appeal for a 2,000 house scheme in Winchester.

The secretary of state has recently refused Cala's planning appeal for that housing, against the recommendation of his inspector. The decision is of particular interest as it will be interpreted by many as an early illustration of the potential effects of localism in action.

The appeal site was allocated as a 'reserve site' within the extant local plan. Cala succeeded in persuading both the inspector and the secretary of state that there was a housing land supply shortfall of approximately two years. It was on the basis of this shortfall that the inspector had recommended granting the appeal.

The secretary of state took a different view on whether this evidence of housing need warranted granting permission. During the appeal the council had provided evidence that it was addressing the housing shortfall via its core strategy, in what was called the 'blueprint' initiative.

The secretary of state's decision letter noted that 'the council has stated it wishes to look afresh at its housing needs and to engage with the government's intention to move away from top-down imposition and to allow local communities to take on a far greater role in identifying the level and location of the housing that is needed in their areas'¦ while it is not yet possible to predict either the level or location of Winchester's housing requirement which will be reflected in the submission core strategy following completion of the consultation exercise, the secretary of state has taken account of the council's stated intentions with regard to looking afresh at its housing needs and to the progress made by the council in pursuing this strategy'.

In essence, notwithstanding that Winchester's own housing land supply assessment had been rejected by the secretary of state, he was content that the authority's embracing of the bottom-up approach to planning should be preferred and permission refused.

This is a controversial decision and not surprisingly Cala has signalled its intention to appeal to the High Court. It comes at the same time as the secretary of state has made similar refusals in Cheshire and Cornwall. These refusals can all be badged under the phrase 'prematurity' in the sense that the refusal is made on the basis that the application is premature, i.e. coming too early in the life cycle of the development plan process.

Underlying the references to litigation in the High Court is a deeper concern, that developers are left uncertain as to how long they have to wait, and possibly what part they have to play, while the local planning policy system 'reboots' following the demise of regional strategies and forms a credible basis of planning policy against which strategic scale developments can be promoted with confidence.

Environmental permitting

In Cornwall Waste Forum St Dennis Branch v SoS for Communities and Local Government [2011] EWHC 2761, the Administrative Court quashed a planning permission granted by the secretary of state for an energy from waste facility on a site close to two special areas of conservation (SACs).

The inspector had recommended that permission be granted on the basis that an appropriate assessment under the Conservation of Habitats and Species Regulations 2010 (the habitats regulations) was not necessary. Significant reliance was placed on the fact that the Environment Agency (EA) had issued a pollution control permit and, in doing so, the EA had determined that an appropriate assessment was not necessary.

The key issue that arose was whether it was appropriate for the secretary of state, on the recommendation of the inspector, to defer to the EA's conclusion that it was not necessary to undertake an appropriate assessment in respect of issues of air quality and their impact on SACs before issuing an environmental permit.

It was accepted by all parties that both the secretary of state and the EA were competent authorities within the meaning of the habitats regulations. However, the defendants sought to rely on regulation 65, which allows a competent authority to elect not to assess a plan or project where it could more appropriately be assessed by another competent authority, in this case the EA.

The judge acknowledged the obvious overlap between the functions of a planning decision maker and the EA, but in his view 'it is not possible'¦ to say in any given case that the planning considerations should defer'¦ to control by the authority concerned with the grant of a permit'.

The planning decision maker has its own obligation to determine whether the facility would have an adverse effect on an SAC and the inspector was therefore wrong to state that air quality was wholly a matter for the EA, especially as the objectors had challenged the views of the EA and presented contradictory evidence.

Significantly, permission to appeal has been given in recognition of the public importance of this issue, which is particularly relevant to decisions on new energy generating plants where the relationship between the environmental permitting process and the planning process is becoming increasingly significant.

For developers involved in the promotion of schemes that require consents under more land use codes than just the town and country planning system, the case adds an additional dimension that, if it remains unchallenged, will need to be factored into the consent strategy at an early stage. Recent cases on appropriate assessment (such as R (on the application of Akester) v Department for Environment, Food and Rural Affairs [2010] EWHC 232 (Admin)) have pointed in the direction of appropriate assessment being directed at the overall activity that was taking place, leading to the conclusion that, in essence, developers would only be looking for that exercise to be undertaken once.

In Cornwall Waste Forum the indication is being given that appropriate assessment is more directed at the consent process that is underway, and that, as different consent regimes look at different facets of a proposed activity, the starting presumption is that there may be multiple rounds of appropriate assessment, possibly concurrent.

It is already widely accepted that different stages in the evolution of a project may separately trigger appropriate assessment (see the high level appropriate assessment that was made of DECC's national policy statement on nuclear power, EN-6, which warned that it was not obviating the need for further appropriate assessment for specific project consent applications), but with Cornwall Waste Forum the additional step has been taken of confirming separate appropriate assessments may be needed of a project at the same stage in its design evolution.