UK planning system shocked by shake-up
Copyright: David Lawson - first published Property Week June 2005
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Every few years the UK planning system is grabbed by the scruff of the neck, shaken harshly and sent back into the world as a lean, mean governing machine, freed of accumulated red tape. Yet before the ink has dried on the latest redraft, delays and frustration are taking hold.
Regulations demanding information on potential environmental impact have been around for more than five years but only recently become a potent weapon for objectors. Several landmark legal cases where planning approvals were thrown out by the courts have left local planners shellshocked. They are now sticking to the letter of the law which demands an environmental impact assessment [EIA] on a vast range of activities. Some are obvious: an EIA is mandatory on proposals such oil refineries, airports, pig farms and quarries. But planners also have discretion to ask for impact studies on more than 30 other kinds of activity including industrial estates and shopping centres.
Yet the potential for extending red tape is almost unlimited, with catch-all categories such as ‘urban development’ and ‘other projects’. Planners have often ignored these in the past but are clamping down after losing a string of court cases where objectors showed environmental information had not been properly considered. One developer has already resigned itself to drawing up an environmental statement on every application, according to Gareth Capner, senior partner of the firm’s planning consultant Barton Willmore.
The vast majority of applications are likely to avoid extra scrutiny. ‘If it’s less than half a hectare or 1000 sq metres you can usually forget it,’ says Capner. But once past the threshold, the burden can be severe. A development of 250 homes could rack up an extra £100,000 in costs and spend six months or more drawing up an environmental statement. Smaller schemes could also trigger demand for an EIA, such as expansion of an existing operation. The impact may be insignificant in isolation but significant when accumulated as part of existing development, says Capner.
The clampdown means developers must spend far more time on planning applications before submission, says David Thomson, a director of Waterman Environmental. This is not just to satisfy planners but protect against objectors if a scheme goes to an inquiry. Planners are meant to clarify uncertainty and speed applications by screening potential developments and ruling whether they require an assessment. This should take three weeks but local authorities are desperately short of resources and often fail to meet deadlines. ‘We have just heard from one that it will be three months before they can make a decision,’ says Capner.
Developers get around the problem by appealing to the Secretary of State for a decision. These tend to go in their favour, as it is fairly obvious where assessments would be deemed necessary, and advisors like Barton Willmore get to work on them long in advance of an application. They cannot be sure such studies will meet planners’ demands until they have been given an indication of the scope of requirements. But the unwritten rule is to include just about everything. Assessments do not just involve obvious areas such as contamination, archaeology and biodiversity, says Thomson. Economic and social factors also come under close examination.
‘In London and the Thames Gateway, the EIA is increasingly used as a vehicle for the GLA and local authorities to ask the applicant to assess capacity of existing utilities and infrastructure, including water supplies, electricity and other energy sources, road capacity, as well as the ability of existing schools and hospitals to cope with increasing populations due to major mixed-use schemes,’ he says.
Planners will always ask for more rather than less. They are attracted by the idea of getting everything about a development in a single package, says Capner, particularly as all costs fall on the developer. This kind of foot-dragging and nit-picking might seem yawningly obvious for anyone who has spent the last few years fighting the system. It is merely a matter of finding out what planners want in exchange for their rubber stamp. Remediation of contaminated land? Social housing? Cash for community facilities? Tight conditions ensuring any problems are sorted out after approval are also commonplace.
But this kind of wheeler-dealing is no longer enough to ensure development will take place. Everything has to be up front, otherwise the way is left open for pressure groups and objectors to go running to the courts. In a key case covering the former Stepney gasworks in east London, approval went as high as the Secretary of State but was still overturned because the decision was judged to have been based on proposed remediation measures built into the planning permission..
Environmental Statement [ES]: Produced by developer or land owner along with a planning application showing information such as design, emissions, significant local impact and measures to mitigate them and potential alternative sites. Barton Willmore warns that while every detail is not required, you cannot rely on planning conditions which refer to issues not included in the ES.
Environmental Impact Assessment [EIA]: As the name implies, an assessment of the various factors included in the ES along with other issues planners may throw into the pot.
Schedule 1: The category under regulations first set out in 1999 where an EIA is mandatory. Includes proposals such as oil refineries, ports, waste disposal and intensive animal rearing
Schedule 2: Planners have discretion whether to ask for an assessment on most proposals coming under this heading. But this carries huge potential for uncertainty, as it includes general terms such as agriculture, industrial estate developments and ‘other projects’. It took a court case to rule that a storage and distribution development in south London should have had an EIS because it qualified as an ‘urban development project’.
Strategic Environmental Assessment [SEA]: Part of the new blizzard of material to be produced by planning authorities, showing environmental appraisal of land-use plans and sustainability appraisal of regional planning guidance. Developers should get involved now to influence these plans rather than wait until they are set in stone, or they may find their land banks devalued, says consultant CPM Environmental.
Screening: Local authorities can be asked to screen an application and state whether it requires an EIA based on factors such as location and impact. This has been the most common source of legal challenges, with several planning applications being quashed by the courts because no EIA was demanded.
Scoping: Another rich source of legal disputes involves local planners’ duty to scope a proposed EIA to provide guidance on the issues it should cover. Like screening, developers can appeal to the Secretary of State if they get no response within a few weeks.
Copyright: David Lawson - first published Property Week June 2005
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The current upheaval in planning has probably generated more debate than any of the reforms that have convulsed development controls every few years since the modern system was born half a century ago. Determination to ‘get things right this time’ stretched the process through two governments, several planning ministers, endless parliamentary debates, multiple public consultations, reams of position papers and the kind of hellfire speeches normally reserved for opposition to middle-eastern wars.
Did it work? Has the creeping, top-heavy bandwagon of red tape been transformed into a stripped-down Ferrari? First signs looked promising as local authorities flush with government grants and an army of imported antipodean planners began beavering away on new strategies to meet urgent new needs such as housing. Then came the first major pothole - and off flew the wheels. It appears that no-one had anticipated that with so many changes linked to endless consultation, it would be wise to ensure there were enough inspectors to handle the inevitable flood of appeals and public inquiries
A letter crept out from the depths of Whitehall late last year telling planners to slow down. Local authorities have been ordered to sort out the ‘core strategy’ element of their new local development framework before moving on to various site-specific plans, easing the load on an overstretched Planning Inspectorate. ‘It’s a scandal,’ says Chris Simkins, operational director at RPS Planning Transport & Environment, on of the UK’s top consultants. ‘The same people who trumpeted the whizzyness of the new system are now looking to slow it to a snail's pace.’
Even though some authorities have already sketched out draft strategies, it will take until 2007 to go through the hoops of consultation and approval. Instead of running in parallel, only then will the process of land allocation begin. ‘Our clients are faced with the prospect of waiting three years before they can do anything much,’ says Simkins.
But surely they can rely on the old plans, which remain in force until new ones are hammered out? That would work if such plans existed. Some local authorities are still working flat out to get those finalised, according to Gareth Capner, senior partner at consultant Barton Willmore. Developers and land owners can still make progress where the old structure plans project forward far enough but some were programmed for revision by next year. Changes in demands such as housing have already made them obsolete but councils are not expected to come up with alternatives until 2009.
The whole thrust of government demands for new housing in areas like the south east could run into this quicksand. ‘Everyone started with such high hopes that the new system would sweep away problems but it is clearly not working,’ says Capner. He estimates that only 20% of local authorities had even sorted out how they will draw up new plans let alone what they will contain.
In the meantime developers should be looking outside the new regime. ‘They need land-specific information and that won’t be available for years because the system is clearly overloaded,’ he says. For instance, Alfie Buller’s Bee Bee Developments is applying for 5,000 homes on land at Corby that has no role in existing plans. Barton Willmore has advised Corby Borough Council to approve the proposals.
This kind of progress could be made in advance of the new local planning frameworks wherever sites fall within areas where growth studies have been carried out. Corby lies with the Milton Keynes Communities Plan. Other growth areas include Ashford in Kent, the M11 Corridor and Thames Gateway.The problem is that some of the hottest areas for housing demand such as the Thames Valley have no such plans, harking back to an era when the government was more concerned with constraint.
And what about more routine planning applications, pouring in by the thousand while all the brainstorming, redrafting and heavyweight consultation is taking place? The picture may be rosy for non-contentious developments – particularly where schemes match old site allocations. Planners are under pressure to push through decisions within eight weeks [13 for larger schemes]. Any kind of dissent could prove even more problematic, however. The tight deadlines have meant more refusals and more appeals. That has led to even more calls on inspectors’ time – already in such short supply that the brakes have been applied to local plan reforms.
There are rumours that appeals are being put in boxes and hidden away, while retired inspectors being offered huge incentives to come back. More certain is the fact that the target period for written representations has stretched from 18 to 50 weeks. Developers demanding full verbal hearings can expect to wait more than a year. ‘The appeals system is in meltdown,’ says Simkins. ‘Rather than significantly increase the number of inspectors, the official response is apparently to slow the new system down to match the resources which were geared to the previous one. If that isn't the tail wagging the dog I don't know what it is.’
Many insiders anticipated the new planning system could cause more problems than it solved. After a mere nine months or so, they believe worst fears are coming true. ‘The government made a serious mistake. The current process should have been streamlined and simplified,’ Nick de Lotbiniere of the London Planning Practice told the 2005 Henry Stewart Annual Planning Briefing earlier this year.
There were always going to be difficulties because of the sheer complexity of the new system. After running through the trials and tribulations of numerous previous attempts to cut through red tape and still produce a responsive and vibrant system, he pointed out that the same problems could re-emerge. ‘The lessons of history appear to have been forgotten,’ he told the briefing.
The new system involves a plethora of plans including:
All could be in one document but are more likely to be in different ones prepared at different times. They will also need a sophisticated and complex monitoring system, all of which contradicts the aim to speed up planning. Another ‘hilarious’ feature of the new planning act according to Chris Simkins, operational director at RPS, is that most of it isn't actually in force. It is being introduced in stages via a series of commencement orders. ‘We're on number four at the moment. You have to be a Times crossword enthusiast to make any sense of it. The public have no chance.’