The Neighbourhood Planning Bill v Conditions

The Neighbourhood Planning Bill proposes some important changes to the planning conditions regime. DCLG published its Improving the Use of Conditions consultation paper  on 7 September 2016 alongside the Bill  (with a consultation deadline of 2 November 2016). 
There are two main elements to the proposals.
Restriction on pre-commencement conditions
I blogged  back in June when the proposal to clamp down further on pre-commencement conditions was first announced. 
As it happens, in my view what is proposed in clause 7 of the Bill, that pre-commencement conditions should not be imposed without the applicant’s written agreement, is pretty sensible as a cross-check that restrictions are not introduced without discussion. Of course, it is not a panacea and in some cases the applicant may be faced with a gun to the head – accept the condition or the application is will be refused – but in many more cases there will be the opportunity for consensus to be reached and the rigmarole avoided of subsequent 73 or 96A applications to morph conditions into a regime that does not unreasonably impede development. 
Indeed, why shouldn’t all conditions be agreed in draft with the applicant wherever possible?
Power for the Secretary of State to ban conditions of a prescribed description
This is more problematic. Clause 7(2) provides that such a ban must first be consulted upon and must only be for the purposes of ensuring that any condition meets the traditional tests of being
– necessary to make the development acceptable in planning terms;

– relevant to the development and to planning considerations generally;

– sufficiently precise to make it capable of being complied with and enforced; and

– reasonable in all other respects. 

Table 1 in the consultation paper lists various very general categories of conditions that should not be used (as per current planning practice guidance) and seeks views on whether any of them should be expressly prohibited by legislation. One wonders what the point of this is. The list in table 1 is very general eg 
– “conditions which unreasonably impact on the deliverability of a development – eg disproportionate financial burden”

– “conditions which duplicate a requirement for compliance with other regulatory requirements – eg Building Regulations”

What will it add to have these general principles in legislation in addition to policy? Who is going to challenge the imposition of conditions by way of the courts, rather than apply to remove the offending condition by way of section 73, with the ability to appeal to the Planning Inspectorate?

Generally, as with section 106 agreements, the exercise of drafting and negotiating conditions is getting increasingly fraught. Some examples:
The Darnhall appeal
The Secretary of State dismissed an appeal for residential development at Darnhall School Lane, Winsford, Cheshire on 7 July 2016, against his inspector’s recommendations. The decision letter  contains some interesting conclusions on a series of draft conditions offered by the appellant:
– training and employment – “not sufficiently precise and would be difficult to enforce, partly because it would be difficult to detect a breach”

– self-build housing – “not necessary to make the scheme acceptable in planning terms. Moreover…there are still concerns raised by the Council as to the effect on affordability which leads the Secretary of State to find that this condition is not reasonable in all other respects”

– local builders – “not necessary to make the development acceptable in planning terms and would not be strictly relevant to planning policy. Dependent on the builders or companies available through the build-out of the development the condition would be difficult to enforce, neither would it be precise, pr reasonable in all other respects”. 

– local procurement – “would not be necessary to make the development acceptable in planning terms. Neither is it strictly related to planning. The condition would be difficult to enforce, in part because it could prove difficult to detect a breach. The Secretary of State also considers that it is unclear what the position is in relation to the availability of business within the specified area to meet the criteria and therefore whether this condition would be reasonable in all other respects”. 

How does this ultra-rigid, purist, approach, fit with the approach taken by many LPAs? It doesn’t at all, obviously. The decision is under challenge, with Chris Young of No 5 Chambers acting for the appellant/claimant. 
“Tailpiece” conditions

“Tailpiece” conditions, along the lines of “unless otherwise approved by the Council” are pretty irresistible to those drafting conditions, seemingly offering a way to sidestep the need for subsequent formal applications under section 73 or 96A where changes are required, as they often are. However their use has been successfully challenged in a series of cases, for instance R (Butler) v East Dorset District Council  (Deputy Judge Rhodri Price-Lewis QC, 28 June 2016), Hubert v Carmarthenshire County Council  (Cranston J, 5 August 2015) and R (Warley) v Wealden District Council  (Deputy Judge Rabinder Singh QC, 8 July 2011). They should only be used where their scope is is closely defined in terms of the criteria to be applied by the decision maker or in terms of only extending to minor changes. 

Sustainability
Eric Pickles’ ministerial statement  25 March 2015 announced the withdrawal of the Code for Sustainable Homes and that until amendments to the Planning and Energy Act 2008 are introduced (which are still awaited) the Secretary of State would “expect Local Planning Authorities to take this statement of the government’s intention into account in applying existing policies and not set conditions above a Code Level 4 equivalent”. 
The same announcement advised LPAs that they should only set additional standards to those contained in the Building Regulations if they are able to justify why this is required and provide evidence to that effect. 
The planning system’s flexibility can be a great asset in negotiating planning permissions that both protect the public interest and meet the applicant’s requirements. We need to be careful that by ad hoc measures this flexibility is not lost – or that the process of issuing a planning permission becomes more routinely a negotiation between respective legal teams and tiptoe around the elephant traps, as it often already is on large schemes. 
Simon Ricketts 9.9.16

Personal views, et cetera

Emerging Neighbourhood Plans (nudge, nudge)

Call me old-fashioned but in my view legislation should change, consolidate or codify law, not simply serve as a political nudge. I referred in my last blog post  to section 1 of the Localism Act. Clause 1 of the new Neighbourhood Planning Bill  is out of the same stable. 
Clause 1 of the Bill amends section 70 of the Town and Country Planning Act 1990 so that, in determining planning applications (in England), a decision maker must have regard to a “post-examination draft neighbourhood plan, so far as material to the application”. The Bill’s explanatory notes  explain that this is “intended to strengthen neighbourhood planning by ensuring that planning decision-makers take account of well-advanced neighbourhood development plans” and to give such plans “full legal effect at an earlier stage”. 

However, plainly, a draft development plan, particularly one that has gone through independent examination is a material consideration for the purposes of section 38(6) of the Planning and Compulsory Purchase Act 2004 (determination to be in accordance with the development plan unless material considerations indicate otherwise) and, as Richard Harwood QC points out in his excellent summary  of the current Bill, not only is it material but it is likely to have considerable weight, due to the stages that it has been through, given the advice in paragraph 216 of the NPPF:

From the day of publication, decision-takers may also give weight to relevant policies in emerging plans according to:

● the stage of preparation of the emerging plan (the more advanced the preparation, the greater the weight that may be given);

● the extent to which there are unresolved objections to relevant policies (the less significant the unresolved objections, the greater the weight that may be given); and

● the degree of consistency of the relevant policies in the emerging plan to the policies in this Framework (the closer the policies in the emerging plan to the policies in the Framework, the greater the weight that may be given). “

Specific advice in relation to emerging neighbourhood plans is in the PPG:

“Planning applications are decided in accordance with the development plan, unless material considerations indicate otherwise. An emerging neighbourhood plan may be a material consideration. Paragraph 216 of the National Planning Policy Framework sets out the weight that may be given to relevant policies in emerging plans in decision taking. Factors to consider include the stage of preparation of the plan and the extent to which there are unresolved objections to relevant policies. Whilst a referendum ensures that the community has the final say on whether the neighbourhood plan comes into force, decision makers should respect evidence of local support prior to the referendum when seeking to apply weight to an emerging neighbourhood plan. The consultation statement submitted with the draft neighbourhood plan should reveal the quality and effectiveness of the consultation that has informed the plan proposals. And all representations on the proposals should have been submitted to the local planning authority by the close of the local planning authority’s publicity period. It is for the decision maker in each case to determine what is a material consideration and what weight to give to it.
The provision in the Bill appears to be rather an after-thought, and perhaps simply a nudge to decision-makers, given that it wasn’t trailed in the Government’s February 2016 technical consultation on implementation of planning changes  , 2 September 2016 response to consultation  or indeed the 7 September 2016 technical consultation on the neighbourhood planning provisions of the Bill  published on the same day as the Bill!

What will make more of a difference in practice to the interplay between emerging neighbourhood plans and decision-making on planning applications will be the increased speed with which neighbourhood plans are likely to be reaching the post-examination stage, due to a timetable within which LPAs must undertake neighbourhood planning functions, prescribed by Regulations under section 140 of the Housing and Planning Act 2016 coming into force on 1 October 2016, meaning that a developer preparing a planning application needs to be increasingly aware that a draft neighbourhood plan may be on its way to being a material consideration before the application is determined. 

The previous planning minister on 7 July 2016 extended  for a further six months his policy to consider recovering for his own determination planning appeals made where a neighbourhood plan proposal has been submitted to an LPA (although increasing the threshold from ten to 25 units). 
The weight to be attached to emerging neighbourhood plans (not addressed by clause 1 as it is a matter for the decision maker as long as properly reasoned), including circumstances where the neighbourhood plan is ahead of the relevant local plan (again not addressed in the Bill), has of course frequently arisen in legal challenges (eg Woodcock Holdings Limited v Secretary of State  (Holgate J, 1 May 2015) and R(DLA Delivery Limited) v Lewes District Council  (Foskett J, 31 July 2015 – Court of Appeal hearing fixed for 15 and 16 November 2016) and in appeal decisions (eg Sunley Estates/Chichester decision letter  25 April 2016).
Equivalent conflicts will continue to arise, notwithstanding clause 1. Indeed it may be easier for third parties to challenge a decision where the LPA can be shown not to have expressly taken into account a post-examination draft neighbourhood plan. 
Simon Ricketts, 8.9.16
Personal views, et cetera