Thursday, 16 January 2014

Is the Government really pushing the 'nuclear' planning reform button?

In typically florid language the Daily Telegraph has reported ( that the Coalition is preparing to mount a “fresh assault” on planning laws by giving developers the power to “push though applications without the need for council approval or environmental assessments".

To make sure that the attention of readers is well and truly grabbed the Head of Policy at the RTPI is quoted as describing the move as a "nuclear option". I wouldn’t be so forward as to describe myself as a planning expert (I’ll leave that to others…), but as a practicing planner I take a more measured view.

Firstly, it is proposed that applicants will be allowed to “ignore” local authorities if they delay the approval of details that have been submitted to satisfy the conditions that have been attached to the grant of planning permission. The use of conditions has grown exponentially over the thirteen years or so of my career as, for one reason or another, mostly though the introduction of targets for the determination of applications, the approval of details has been back-ended in the application process. Typically if a LPA is agreeable in principle to a development and details can be left for later approval without affecting that principle, it is mutually beneficial to both applicant and local authority to deal with most details in this way.

If those details are of fundamental importance to the development (whether they relate to highways improvements, landscape creation, noise barriers, or similar) then they should be requested prior to determination. If they are not fundamental, but simply important and need to be considered prior to the commencement of development, then it is not unreasonable for applicants to expect that a planning officer will be available to consider those details. Rather than applicants being given license to “ignore” local authorities, more attention should be given to the reasons why a local authority cannot deal with applications to approve details that they themselves have requested.

The second initiative is to increase the threshold at which applicants are expected to submit a formal Environmental Impact Assessment (EIA) in support a development proposal. The new measure, it is said, will “reduce the need to assess the impact of large scale developments on the countryside” (though, of course, it will apply equally in urban areas). At present, as the Daily Telegraph notes, developers have to consider carrying out an EIA “when a development such as a new housing estate, shopping centre or cinema covers more than an acre of land.” The proposed legislation would, however, “raise the threshold to a significantly higher level than an acre, exempting thousands of developments from the need to have an environmental assessment”.

George Osborne first mooted these changes in his December 2012 Autumn Statement and a statement from DCLG at the time recognised that "some local authorities require detailed assessment of all environmental issues irrespective of whether EU directives actually require it; similarly, some developers do more than is actually necessary to avoid the possibility of more costly legal challenges, which adds delays and cost to the application process".

There is certainly something to be said for reform in this area because the voluntary submission of an EIA by applicants, and the defensive request for EIA by local authorities, has become a familiar response to the increasing threat of a speculative judicial review (JR) challenge from competitors promoting alternative sites. The Coalition has moved to reduce the ability to make such speculative JR challenges and EIA reform is consistent with this, but it should be noted that any EIA reform also needs to be consistent with the European legislation that underpins our processes, as well as requiring a change to legislation. It should also be noted that even if a development is not formal EIA development, it is beholden on a local authority to have an up-to-date plan with policies for the protection of the natural environment and, where the local plan is not up-to-date, to refuse planning applications where the adverse impacts would significantly and demonstrably outweigh the benefits. Whilst perhaps not a formal EIA, a proper assessment of environmental impact would remain a part of the planning process even if the threshold was lifted.

So. A “nuclear option?” Not in my view, but then “Government to revise further planning guidance” is probably a less exciting headline.

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