Development plan documents
New regulations
The Town and Country Planning (Local Development) (England) (Amendment) Regulations 2008
These amended regulations came into force on 27 June 2008. They are a clear recognition of the complexity of the new development plan regime brought in by the Planning and Compulsory Purchase Act 2004.
The new regime had envisaged that 80% of local authorities would have in place a core strategy by September 2007. In fact only 5% have adopted a core strategy. The new regime was over complicated and had too many levels of consultation leading to what has been termed “consultation fatigue”. The amended regulations remove one stage of the consultation process.
In addition, the original regulations had provided for consultation on the draft core strategy after it had been submitted to the Secretary of State. A local planning authority has lost control of the draft by this time and is not able to take on recommendations arising from that consultation, even where they may be strong objections.
As the inspector is only able to make modifications and not fundamental changes on examination of the plan – if he or she considered the objections well founded and impacting on the “soundness” of the plan this often led to the core strategy or other development plan document being recommended to be withdrawn. If withdrawal occurred, the local planning authority would have to start again on the core strategy or other development plan document after having committed considerable time and resources to the process.
The amendment regulations provide for representations to be made before the document is submitted to the Secretary of State enabling it to take on board any objections that may otherwise render it unsound.
New PPS
Planning Policy Statement 12
A revised PPS 12 has also been published (4 June 2008) to provide guidance on the preparation of development plan documents. The new guidance is a slimmed down version and contains more focused advice on preparing spatial plans. It also cuts down the number of soundness tests the development plan documents must meet, although the components of each test do rely on matters that demonstrate a strong evidence base and which were individual tests under the previous PPS 12.
Both the above changes to the process and guidance will be welcomed by those involved in the preparation of the plans and stakeholders. The system, as previously enacted, has led to uncertainty and policy vacuums, which is unsatisfactory in a development plan led planning system.
Local plan
Persimmon Homes (Thames Valley) Ltd v Stevenage Borough Council
[2005] EWHC 957 (Admin)
This was a challenge under the Town and Country Planning Act 1990 s.287 contending that the terms of a policy within the local plan were not capable of supporting the assertion that the local plan was in general conformity with the structure plan.
The local plan policy contained a proviso making clear the circumstances in which the strategic policy would be given effect. The Court held that the way in which the policy was worded fell within the meaning of general conformity as the word general introduced a degree of flexibility."It is difficult to define the scope of the statutory phrase 'in general conformity' as a matter of universal principle; it is easier to decide whether specific policies come within it. However it seems to me that, judged objectively, the words are wide enough to encompass a reproduction of the structure plan policy in the local plan, subject to a qualification as to justification or timing that nonetheless contemplates that the purpose of the strategic policy may be achieved in the plan period. The way the SBC have worded Policy H2 and its explanatory material does fall within the scope of the phrase. The application on Ground 1 therefore fails."
Updating of policy
Effect on plans - affordable housing
Persimmon Homes (North East) Ltd v Blyth Valley Borough Council
[2008] EWHC 1258 (Admin)
Summary
This case demonstrates the difficulties in producing a core strategy where there is a continual update of planning policy during its preparation.
Facts
In this case, the affordable housing target in the core strategy was fixed prior to new guidance in PPS 3 requiring viability to be taken into account. As a result viability was not addressed in accordance with that guidance, in particular paragraph 29. The inspector examining the core strategy nonetheless found it sound noting also that each application would in any event have to be determined in the light of viability. The claimants challenged this on the basis that no proper assessment of viability had taken place, and that this was contrary to national guidance.
Decision
The court noted that it was not surprising that the policy guidance had not been taken into account as it had not been published at the time the figures were arrived at. However, it considered that the policy was flawed as it was not consistent with current guidance. The inspector should either have altered the wording of the core strategy to require viability to be taken into account on consideration of each application or have adjourned in order for further information to be obtained in respect of viability.
On the present wording, even though each application would be considered in light of viability the fact remained that the target was there and having regard to the need to determine applications in accordance with the development plan this would create a situation where the target in the development was flawed.
Comment
Although the policy guidance had not been had regard to, the inspector decided that the core strategy was sound in any event. However, the court emphasised the need for the development plan to take into account up to date guidance particularly where it is fundamental to the consideration of the policy.
The new regulations will enable representations to be made in respect of the draft core strategy prior to submission and therefore it will be possible to make alterations before the matter is put before the inspector. However, as noted above, in this case, the inspector considered the policy sound in any event. The court quashed the policy on the basis that the new guidance was fundamental to the formulation of the policy.
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