Archived decisions
APPENDIX 1
THE PLANNING AND COMPULSORY PURCHASE BILL
BRIEFING NOTE ON THE CONSULTATION DOCUMENTS ON PROCEDURES
1. The Government's Proposals
1.1 Key matters from the consultation documents are detailed in the following paragraphs.
1.2 PPS11 - Regional Planning/Town and Country Planning (Regional Planning) (England) Regulations 2004 sets out in more detail than in the Planning and Compulsory Purchase Bill the scope and format of Regional Spatial Strategies (RSS), the procedures for preparing them and for public inquiries into them (known as `Public Examinations'), and the arrangements for their implementation and monitoring.
1.3 The RSS will provide a spatial framework to inform the development of Local Development Frameworks (LDFs), local transport plans, and other regional and sub-regional strategies. They should provide a broad development strategy for at least 15 years, including the scale and distribution of housing, priorities for the environment, transport, infrastructure, economic development, agriculture, and minerals and waste. The RSS will include a key diagram to illustrate the spatial strategy and will include policies specific to its region, including sub-regional policies where appropriate.
1.4 Regional Planning Bodies (RPBs) must prepare the RSS in partnership with regional stakeholders and the community. It must demonstrate this through a `pre-submission consultation statement' explaining who has been involved in the process, which needs to be published alongside a draft RSS revision. In particular the RPB is to work in partnership with local planning authorities and county councils as these authorities are recognised as having a key role in the development of RSS policy and its implementation.
1.5 PPS11 reinvents the term `strategic planning authorities' for convenience, when describing county and unitary councils. The draft PPS says that where RPBs need assistance, they are expected to enter into partnership arrangements with these authorities and this might include:
(i) providing technical expertise to assist the RSS Review, including district distribution of housing;
(ii) assisting or leading on sub-regional work;
(iii) providing advice to RPBs on general conformity issues;
(iv) monitoring and advising District Councils on development plan documents; and
(v) making representations on planning applications where regional or sub-regional considerations are raised.
1.6 Although Structure Plans are to be abolished by the legislation, draft PPS11 sets out the arrangements for Structure Plans to be `saved' during a transitional period of up to three years until RSS is adopted in the region (currently expected to be summer 2006 in the South East). The draft RSS allows RPBs to extend the `saved period' in certain circumstances.
1.7 Six Annexes to the draft PPS provide supplementary advice, including the requirements for community involvement in RSS preparation and the arrangements for Public Examinations.
1.8 PPS12 - Local Development Frameworks (LDFs) sets out the Government's policies on the preparation of Local Development Documents (LDDs) that will comprise the LDF. PPS12 will supersede PPG12.
1.9 All plan-making authorities, including County Councils in respect of minerals and waste documents, must submit a Local Development Scheme to the First Secretary of State for approval within six months of the commencement of the Act. The Scheme is a public statement of a three year project plan. It has to indicate the LDDs to be prepared, the policies/ proposals from existing plans that will be saved, the proposed timetable for preparing the LDDs and how progress will be monitored. It has to identify the resources required, constraints and milestones. The approach has to show the involvement of other local partners and stakeholders in the preparation of the LDDs.
1.10 LDDs will comprise Development Plan Documents (DPDs) which will be spatial planning documents subject to independent examination, Supplementary Planning Documents (SPDs) which will provide policy guidance to supplement the other documents but will not be subject to independent examination, and Statements of Community Involvement (SCIs) which will set standards for involving the community in the preparation of documents/major development control decisions and will be subject to independent examination.
1.11 DPDs must include a core strategy, site specific allocations of land, action area plans and proposals maps. For minerals and waste development the core strategy should take account of the need to contribute appropriately to national, regional and local minerals requirements at acceptable social, environmental and economic costs, and the local strategy for waste management based on the best practicable environmental option assessment at the regional level. The time horizon for the core strategy should be at least 10 years from the date of adoption. Site specific allocations should be founded on a robust and credible assessment of the suitability and availability of land for particular uses. Area Action Plans will be used where needed to provide a framework for areas of change or conservation. The proposals map will be on an Ordnance Survey base and identify development sites as well as areas of protection. For minerals and waste there is a considerable list of requirements, including minerals safeguard areas, contaminated land and areas protecting the water environment. The LDF should only contain a limited suite of policies and avoid repeating national policy statements. Reasoned justification should be kept to a minimum.
1.12 PPS12 also covers the development process. LDDs should provide an agreed vision for the area endorsed by the community and stakeholders and addressing short, medium and long term priorities. LDDs should not be restricted to planning matters and can include other elements which relate to the use of land. They should not be compromised by unrealistic expectations on the future availability of infrastructure. Reference is also made to preparing a sustainability appraisal and strategic environmental assessment.
1.13 Authorities should take key decisions on the strategy and proposals at an early stage in consultation with bodies identified in the SCI. With regard to preferred options the authority has to publish proposals for general comments for a period of six weeks. Following this stage the authority has to prepare the DPD document. PPS12 states that the authority should be building consensus through continuous community involvement and therefore this should not lead to the need to fundamentally change the preferred options and proposals. Authorities have to ensure that the DPDs are sound.
1.14 Following submission of the DPD, authorities invite representations for a period of six weeks. Any proposals received for alternative site allocations have to be subsequently advertised for comment. Authorities should not normally propose any changes to the DPD after submission. Authorities at this stage seek conformity with the RSS from the regional planning body. After the public examination on the DPD the inspector will produce a report which will be binding on the authority.
1.15 Authorities have to produce an annual monitoring report on progress with LDDs.
1.16 Town and Country Planning (Local Development) (England) Regulations 2004 set out the form and content of LDDs and the procedures to be followed.
1.17 The Government's amendments for the recommittal of the Bill to Standing Committee and the draft Regulations make clear the role of County Councils to keep under review matters relevant to county interests, including the planning of development. This means that the County Council needs to monitor the principal physical, economic, social and environmental characteristics of the area, population, transport and any considerations which may affect these matters.
1.18 The draft Regulations contain detailed matters of procedural arrangements in operating the new planning system. The Regulations also indicate that the policies in the core strategy must include a statement of any social, environmental and economic objectives which are relevant to the attainment of the development; LDDs should have regard to the need to maintain appropriate distances between establishments and residential areas and public amenity/sensitivity areas; and the annual monitoring report must cover the progress on completing documents in the Local Development Scheme and identify policies in DPDs which are not being implemented. The Regulations also cover the powers of intervention by the Secretary of State.
1.19 Local Development Frameworks - Guide to Procedures and Code of Practice explains how the new development planning system will operate at the local level. The document is intended to give practical advice and guidance. The document includes, of specific interest, that a process of continuous community involvement should be introduced, that the community should be consulted on the Statement of Community Involvement, that documents can be prepared in advance of a formal Statement of Community Involvement but authorities must meet certain minimum standards, that the Proposals Map must be kept up to date at all times, and that annual monitoring reports also have to cover relevant targets set in other strategies such as the RSS. In addition, all potential sites should be brought forward as early as possible in the process so that they can be considered by the local planning authority and be subjected to sustainability appraisal.
1.20 Creating Local Development provides advice on the process of the new plan making and is aimed at those involved in preparing and commenting on Frameworks. It has been prepared for the ODPM by consultants. Practical advice is given on the various production stages.
1.21 Town and Country Planning (Transitional Arrangements) (England) Regulations 2004 set out the provisions for plans which have reached the stage that an inspector has been appointed to hold an inquiry on the plan. The Bill has provisions for authorities to take no further steps in relation to proposals for plans that have not reached this stage.
1.22 Town and Country Planning (General Development Procedure) (Amendment) (England) Order 2004 sets out provisions on a number of development control issues, including Local Development Orders, Statements of Development Principles and a new duty to respond to statutory consultees. Local Development Orders will enable planning authorities to introduce local permitted development rights. Statements of Development Principles do not grant planning permission but must be taken into account in determining applications for similar development which are submitted within three years of the Statement. The draft Order sets the time period of 21 days for statutory consultees to respond on applications and also requires consultees to report annually to the Secretary of State. There are also other provisions to decline to consider applications, to allow a period of four weeks for dual jurisdiction of an appealed application for non-determination which will allow the preliminaries of the appeal process to start whilst local planning authorities are concluding their determination, to reduce the period of consent to three years for full permissions and to prevent the extension of time limited permissions by applying to vary a condition.
1.23 Town and Country Planning (Major Infrastructure Project Inquiries Procedure) (England) Rules 2004 allow for the appointment of a lead inspector and additional inspectors if required. The new rules will allow inquiries to be held in concurrent sessions by a number of inspectors, introduce some changes in timetabling and alter interpretation rules.
1.24 Further guidance on certain aspects of Local Development Frameworks will be published later this autumn but some advice will not be available until April 2004.
2. Comments of the Director of Environment
2.1 The draft procedures give further details on the Government's intentions to modernise the development plan system and speed up effective development control. The potential for success of the new arrangements and the implications for the County Council are discussed below in relation to each of the consultation documents.
PPS11 - Regional Planning/Town and Country Planning (Regional Planning) (England) Regulations 2004
2.2 The draft PPS11 emphasises the important role of county (and unitary) councils in assisting the Regional Planning Body, ranging from leading sub-regional studies to commenting on planning applications of regional or sub-regional importance. It is difficult to seek more for county councils, short of the retention of county-level plans. The reliance which the draft PPS places on county councils to assist with the new arrangements bears out the case being made by the Local Government Association and others for the county councils' role to be written into the Bill as a statutory responsibility. It is perplexing why the Government continues to resist the latter, while obviously placing so much reliance on county councils' assistance within the draft PPS. However one concern is that Regional Planning Bodies should not be constrained by an unwilling County Council partner. Arrangements should be willingly entered into.
2.3 Without such a statutory responsibility it will be for each Regional Planning Body to decide how to involve its local authorities in preparatory work and for each County Council to choose which role(s) it wishes to perform on behalf of the Regional Planning Body. This could lead to a patchwork of different `agency' arrangements across a region creating potential confusion and inconsistency.
2.4 Although the draft PPS says that the RSS provides a spatial framework to inform other regional strategies, such as the Regional Economic Strategy and Regional Housing Strategy, it gives no guidance on which is pre-eminent in the event of conflict. Arguably this should be the RSS, not least because it is the only document which is statutory. The draft PPS fudges this issue, merely giving platitudes about all the strategies "needing to be aligned".
2.5 It is of course to be hoped that the partnership working between local authorities and their RPB will result in an RSS which all are able to support. The probable reality though is that some local authorities will oppose parts of the RSS and seek changes to be made to it. It is important that the views of such authorities are heard, not just because they are the voice of local people, but also because they must prepare the Local Development Frameworks which will implement the RSS and, in the case of county councils, deliver the education, social services and transport infrastructure which are crucial to new development. It is therefore a major omission that local authorities - whether county, unitary or district - are not amongst the specified list of participants who might be invited to the Public Examination of the draft RSS. Environmental organisations, women's groups, private interest groups and individuals are given as examples of potential participants, whereas the best which local authorities can expect is that "There may be occasions when a representative(s) of groups of local authorities may be invited in view of the matters to be discussed" (added emphasis). Local authorities, especially strategic planning authorities, should have the same status as other organisations within the list of potential participants, recognising that even then the final choice of participants will rest with the independent Panel who will conduct the Public Examination.
PPS12 - Local Development Frameworks/Town and Country Planning (Local Development) (England) Regulations 2004
2.6 The Local Development Scheme has to be submitted within six months of commencement of the Act. The draft Regulations state that a Scheme has no effect unless it is approved by the Secretary of State or no direction is received. There are therefore no provisions for pre-commencement work. The County Council has initiated considerable preparatory work on the Hampshire Minerals and Waste Development Framework as part of the Material Resources Strategy. This work is intended to speed up the process for the County Council to achieve up-to-date policies for minerals and waste as the adopted Local Plan only covered the period up to the end of 2001.
2.7 The inference from PPS12 is that only evidence gathering can take place in advance of approval of the Local Development Scheme. As the work on the Material Resources Strategy includes an in-depth stakeholder dialogue, there is a danger that the County Council may be required to repeat some activities after approval of the Scheme. This would increase costs and delay the current programme for the Hampshire Minerals and Waste Development Framework. Officers should raise this matter with GOSE and the ODPM. A further report to the Executive Member for Environment may be required.
2.8 Local Development Schemes must provide details of the Local Planning Authority's three year project plan. This will have implications for budget and service delivery planning as expenditure and staff resources for the subsequent three years will have to be identified at the beginning of the process.
2.9 The draft Regulations specify that the Local Development Scheme should include the date the local planning authority intends to comply with public participation on the pre-submission of DPDs and the subsequent submission to the Secretary of State. This provision also applies to the Statement of Community Involvement. Paragraph 3.1.5 of PPS12 infers independent examination of the Statement of Community Involvement before LDDs are prepared. This may be a drafting error, but if it is not this provision will extend the time to produce LDDs.
2.10 In a similar fashion to the Local Development Scheme, the Statement of Community Involvement has to cover resources and management of the participation programme. This will require clear estimates of time and funding before commencing the work on LDDs. Paragraph 3.1.9 of PPS12 supports combined consultation exercises with other programmes and initiatives. The County Council will achieve this to some extent on the Minerals and Waste Development Framework through the overarching Material Resources Strategy dialogue but there will not be a combined consultation programme with Community Strategies.
2.11 More guidance is needed on the spatial content of LDDs. No advice is given on the boundaries of the work to be undertaken outside the normal land use planning interests.
2.12 The proposed content of LDDs is still unclear. Paragraph 1.3.3 of PPS12 refers to an agreed vision signed up to by the community and stakeholders covering short, medium and long term priorities. This infers more than just an individual statement. The proposed emphasis on delivery of strategy means more work will need to be done on feasibility and implementation of policies, including the availability of sites.
2.13 For minerals and waste development, PPS12 requires minerals proposals to contribute adequately to regional requirements. This rather soft approach will allow the rigorous testing of national and regional targets. Waste proposals should be based on Best Practicable Environmental Option (BPEO) at the regional level. The County Council's comments on the draft Regional Waste Management Strategy indicated that there was not a clear regional BPEO.
2.14 PPS12 indicates that Proposals Maps require identification of certain protection areas. This is a greater requirement than previously undertaken in the Minerals and Waste Local Plan. In addition the minerals and waste safeguarding areas, etc ultimately have also to be shown on District Frameworks Proposals Maps.
2.15 The inclusion in the draft Regulations for County Councils to keep under review certain survey responsibilities is welcomed. The County Council will need to continue with its broad survey function and make the information available to District Councils, the Regional Assembly and other interested parties. It should be noted that District Councils will have responsibility for housing surveys.
2.16 PPS12 as written indicates a different process to current thinking on formal consultations on LDDs. Paragraph 4.3.4 of PPS12 infers that the preparation of issues and options need only be debated with the bodies set out in the Statement of Community Involvement. Paragraph 4.3.6 of PPS12 refers to preferred options and proposals being published with a six week consultation period. However the draft Regulations refer to a six week period for representations on pre-submission proposals documents. Indeed, even before this stage, the draft Regulations require local planning authorities to consult on the content and proposals of the DPD with the Regional Assembly, District Councils, adjoining local authorities, the Countryside Agency, Environment Agency, English Heritage, English Nature, the Strategic Rail Authority, SEEDA, Health bodies, utility companies and any other appropriate bodies. Subsequently, paragraph 4.4.1 of PPS12 indicates that the submitted document will be subject to a six weeks' consultation period for representations. Alternative sites proposed during this period have to be the subject of a separate consultation exercise.
2.17 Consultation will better inform the process but at the moment the approach proposed represents a complicated and time-consuming exercise. The position on consultations is likely to become clearer after the publication of further guidance during November 2003. However it must be noted that the proposed process is likely to be a more costly exercise compared to current arrangements.
2.18 PPS12 and the Regulations indicate that local planning authorities should `front load' the preparation process for DPDs. New material should not normally be raised at the examination which has not been considered during the production phase of the DPD. Also the Inspector's Report will be binding on the local planning authority. In view of this approach, the County Council will need to ensure that sufficient work on all the minerals and waste issues has been undertaken prior to submission of the DPD. The Government has indicated that authorities will need to change little in the documents if community involvement has been effective. A consensus view will not satisfy all parties and the County Council may need to spend considerable resources on mediation.
2.19 If the Secretary of State thinks that an LDD is unsatisfactory at any time, he may intervene before the document is adopted and direct modifications. Whilst the Government is proposing greater freedom over the content of LDDs, it is unclear how strong a role Government Offices will perform in assessing the soundness of the pre-submission documents. It will only be through implementation of the new procedures that it will be ultimately understood the extent to which the Government wishes to seek to retain control and influence.
2.20 The draft Regulations and PPS12 refer to the content of an Annual Monitoring Report. Whilst an Annual Report on Minerals and Waste Planning has been regularly produced in Hampshire for the last six years, the new procedures have different requirements. Progress on LDDs and reasons for delay have to be included as well as information on policies not being implemented. This also would be a new burden in staff time and costs.
Local Development Frameworks - Guide to Procedures and Code of Practice/Creating Local Development Frameworks
2.21 There are concerns that the implications of the detailed guidelines on process and practice will mean a complicated and convoluted approach to plan making. Compliance with some of the proposals as described could lead to delays as some requirements have a sequential process which will not provide a speedy process as hoped for by the Government.
2.22 The new system of continuous community involvement is laudable but will involve considerable programme management to be able to consult and react to public comment covering all stages of plan production.
2.23 Front loading the preparation of a submitted development planning document will also peak staff and budget resources compared to the current system which spreads the process over a greater timescale.
2.24 The emphasis on delivery will be challenging as the current planning system is ill-equipped to ensure the implementation and timing of necessary infrastructure and services.
2.25 There are many practical advice points that will need clarification and the potential gains or pitfalls will not be really understood until local planning authorities begin to operate the new system.
Town and Country Planning (Transitional Arrangements) (England) Regulations 2004
2.26 As it has been decided to cease work on the roll forward/review of the Hampshire County Structure Plan Review, and that it will not be likely to achieve a first deposit on a review of the Hampshire, Portsmouth and Southampton Minerals and Waste Local Plan, these regulations will not be applicable to the County Council.
Town and Country Planning (General Development Procedure) (Amendment) (England) Order 2004
2.27 Local Development Orders are proposed which would allow for some permitted development in addition to that provided by the General Development Order. These may have some limited value in respect of giving more flexibility for minerals and waste development. It could be used to identify additional processes at acceptable waste sites and it may be applicable in dealing with Resource Recovery Parks. Orders would have to be advertised, be subject to consultation and ultimately approved by the Secretary of State. It can be seen that the process for adopting a Local Development Order is extensive and there are concerns that for minerals and waste development it may not be cost effective. A best practice guidance note is due to be published in November and this may give further details.
2.28 A local planning authority must issue a Statement of Development Principles in relation to a proposed development if it is requested to do so by any person. There is no set format for a Statement and local planning authorities would have to produce their own templates. The process would be similar to applications for planning permission. This may be a time-consuming exercise but details about fees for preparing Statements are still awaited from Government. The process may be a response to legal problems with outline applications which require Environmental Impact Assessments but in Hampshire most minerals and waste applications are fully detailed. It may also set up a `legal minefield' as an aggrieved applicant may seek judicial review if he or she felt that an application had not been determined consistently with a related Statement of Development Principles.
2.29 The proposed new duty for statutory consultees to respond within a set period could improve performance figures in dealing with applications. A protocol would be needed to determine action if responses were not received within the set timescales. Although ultimately the number of District Council consultations may reduce, the County Council will still be a consultee on certain applications and would therefore have to complete an annual report on its performance on District Council consultations for submission to the Secretary of State.
2.30 The dual jurisdiction of an appealed application for a short period, allowing the appeal process to start while the local planning authority conclude their determination, could be a useful innovation. It may assist decision taking as well as clarifying reasons for refusal at an appeal.
2.31 The reduction of time limits on applications could be beneficial as long as it only applies to commencement times. However, if it were to apply to completion dates, this would be significant for minerals and waste development. In these cases operators often request extensions of time as variations to a condition. Under the new procedures, these would have to be full applications and, in many cases, would trigger Environmental Impact Assessment requirements.
Town and Country Planning (Major Infrastructure Project Inquiries Procedure) (England) Rules 2004
2.32 The appointment of additional inspectors taking evidence on different objections may speed up the process but it may be very difficult for major participants and the public to be involved in concurrent rather than consecutive considerations.
3. Conclusions
3.1 The Planning and Compulsory Purchase Bill proposes radical changes to the planning system, reflecting the Government's desire for a modern effective planning system. The draft regulations and guidance notes provide some clarity to the proposed new approach.
3.2 Operating the new procedures will be a major challenge for local planning authorities. The County Council has in this report put forward comments on the new procedures and the implications for Hampshire. It will be necessary to consider further the implications of the Government's proposals in relation to pre-commencement work on LDDs. In addition the County Council will need to consider any new additional Government advice when this becomes available.
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