LPAs must be involved in drafting NDPs

It seems like a long time in blogging terms since I mentioned Neighbourhood Planning.

I refer to it now because a planning application in my village has just been refused permission as being not in accordance with the made NDP.  The argument in support of this refusal and against the officer recommendation of approval seems to be that the site is not an allocation in a plan that has identified more than enough houses on three sites and this one was  suggested too late to be included in the plan.  The officers suggested that the NDP 'made' about 8 months ago was 'out-of-date' because of the lack of a 5 year land supply (the relevant Local Plan was still at its examination stage.

The Government or those responsible for drafting the NPPF could not have imagined that it would take so long for Local Plans to get adopted and that so many NDPs would get their noses in front but have their authority undermined by the absence of a local plan and 5 year land supply.

While that is a general problem, in this case it obscured another issue which is the drafting of policy.  The preparation of the NDP could be characterised in two important ways.  The Government has given us the power to do this job so we will assume our competence to do it.  Clearly we know what we want (that will be tested at referendum) and although we will not have the expertise to draft planning policies, these will be checked by the LPA and the NDP examiner.

In the event the expectations or aspirations sailed through the referendum although I an confident that I was the only person to check the NDP against the emerging LPA to enable me to vote on which would be better for the village as the 'development plan'.  But the policies are pretty well as drafted by the parish planners.  The LPA are now faced with having to decide whether applications are or are not in accordance with policies that do not say what they mean or (judging by the two decisions made based on the NDP) apparently mean what they say.   The effect has been that a development on an allocated site has been refused despite some 'extra' housing being the most glaring example of ribbon development that conflicts with a criteria set out in the NDP.  And the latest application appears to accord with all the relevant NDP policies but is being opposed because it was not chosen by the parish planners.

The plea from this blog is for LPA planners asked to supervise NDP preparation should ensure that policies are of an equivalent precision to those in plans of their making.  The parish planners might be starting to realise that its policies should have been 'prescriptive' or 'proscriptive'.  Policies can be 'permissive' but then should have the criteria that justify such policies  being included in a development plan.

The attraction of localism is proportionate to the dis-favour shown to LPAs.  However, it should not be seen as an alternative to local planning and LPAs and neighbourhood planners should be cooperating to a much higher degree that is reflected in many  made  NDPs.

If agro-ecology is different how can planning promote it?

So to continue the argument that different agricultural regimes affect matters of acknowledged public interest in materially different ways, the procedures through which this could be brought within planning control are quite technical and complex - but that hasn't been a problem for this or previous governments. 

Objectives - For the purposes of this Blog it is assumed that a mechanism is being sought to define the type of agricultural unit that would be most likely to deliver the benefits described in the previous Blog; bio-diversity, employment, low carbon emissions, soil health, water retention/flood alleviation, public health, local food security, and sustainable development.

The first step is for a change to s55 of the Act to stipulate that a change to and from different agricultural (and forestry) uses will be regarded as development for which planning permission will be required, together with regulations to stipulate the criteria against which the character or nature of the holding/planning unit would be judged.

Option 1 -  This would be to create new Use Classes for different and distinct forms of agriculture.  The Use Classes would work to classify holdings of a particular character (and possibly size?) so that they would fall within say Use Class AG1,  and holdings displaying materially different characters could fall into AG2, AG3 etc - with any material changes between AG1, AG2 being regarded potentially as development requiring planning permission. Secondary legislation in the form of General Permitted Development Orders have been used to specify changes of use of a beneficial kind would not need express permission.

There are instances where area/floorspace is used as a distinguishing feature  and  different permitted development rights for agricultural buildings apply to holdings of > 0.4ha, >1ha and < or > 5ha.  This might suggest the use of an area of say 5ha as one of the criteria most likely to meet the Objectives? Other criteria might be more subtle and even harder to measure.  There are measures of bio-diversity or natural capital that could be used to distinguish between different holdings either at the point of a possible change of use or to set targets to be achieved over time.  I am not sure about how soils could be graded but as carbon is one of the criteria on which the claim of 'material differences' is being based, and relates in some way to soil fertility, this could be another measure to differentiate between land uses.  Employment potential is often assessed in making planning decisions and would be part of this new process.  The question of organic or chemical inputs could, in theory, be part of the process of distinguishing between uses but would require detailed accounting beyond the resources of most if not all planning departments.  There could be reliance on the accreditation available from the Soil Association but not all organic holdings register.  An alternative would be to pass the responsibility onto the farmer who intends to apply inorganic fertilizers, pesticides and insecticides to the land.

Regulations or possibly the NPPG could explain how these criteria could be assessed independently or cumulatively to allow an assessment of which Use Class should apply.  Where there are substantial areas of a holding that exhibit different characters the 'mix' of Use Classes creates a sui generis use.

Option 2 - As well as a change to s55 of the Act,  this option would also require regulations to stipulate the criteria against which the character or nature of the holding would be judged but that  agricultural (and forestry?) uses should be regarded as sui generis.  This would enable a judgement to be made as to  character of an existing farm and then whether  any changes amount to a material change of use.  Planning controls could then immediately prevent farming from becoming larger and more industrialised or carbon intensive. And if and when planning permission is being applied for, conditions could be applied to make the existing systems more sustainable  with reference to the agreed criteria.

Option 3 - This is a radical option that could be considered if the need to change agricultural practices became urgent.  There are already powers to discontinue existing lawful uses which (subject to compensation) can be used to require a material change of use including any of the criteria relating to sustainability.

Whatever change to the law/regulations is proposed there should be policies put in place to ensure that these new powers are used purposefully and not arbitrarily.  Policies at national (ie NPPF and NPPG) and possibly local level (local and neighbourhood plans) should help decide how applications should be determined and if approved what conditions it would be reasonably necessary to impose.

This proposal needs much more 'fleshing out'  but for the sceptics (all practicing planners) it should be noted that farmers can already be required to provide very detailed information about any farm gate operation to check whether it amounts to a change of use or is meeting planning conditions/obligations.  There are also some extraordinarily  difficult judgements to be made in respect of possible differences between catering uses (A3 food,A4 drink and A5 take -away) and between residential uses (C3 dwelling, C4 multiple occupation and sui generis HMO).  And that is without reference to the advertisement regulations.

All that is needed is the hard evidence that the use of our agricultural land and countryside should change and will need some form of (planning) regulation for it to do so.

Should Planning control the use of ‘agricultural’ land?

This post seeks to respond to the question raised in the previous blog.

Since the drafting of the 1947 Town and Country Planning Act the change of use of land to agriculture or forestry has not been defined as development requiring planning permission.   And the definition of agriculture (shared with the 1947 Agriculture Act) was and is,

“agriculture” includes horticulture, fruit growing, seed growing, dairy farming, the breeding and keeping of livestock (including any creature kept for the production of food, wool, skins or fur, or for the purpose of its use in the farming of land), the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds, and the use of land for woodlands where that use is ancillary to the farming of land for other agricultural purposes, and “agricultural” shall be construed accordingly;

This is often also taken to mean such use of land for trade or business.

It is interesting to look at some of the interests of acknowledged importance that are protected and advanced when changes of use or the erection of buildings are within the control of the planning system;

-       productivity and soils (ie Best and Most Versatile land should, where possible, be protected from irreversible development) ,

-       biodiversity and soil conservation (ie Sites of Special Scientific Interest and other nature conservation designations are also normally protected from development),

-       surface water flooding (the ability of urban land to absorb surface water ie Sustainable urban drainage systems),

-       carbon emissions (an important part of the NPPF  presumption in favour of sustainable development and the contribution to achieving sustainable development (ss 19 & 39(2) of the 2004 Planning and Compulsory Purchase Act),

-       local employment (particularly in rural areas that does not imply large scale or long distance commuting).

-        Health and wellbeing (planning controls emerged from a concern about public health),

-       sustainable development (the economic, social and environmental impacts of development)

-       food security.

If it can be shown that different forms of agriculture can have materially different impacts in some or all of these respects then attention should be given to whether changes to and between agricultural practices should reasonably come within the control of the land use planning system.  It should be borne in mind that existing statutory planning controls have always been involved in distinguishing between uses with often slight and hard to discern differences eg what distinguishes a catering use that is predominantly serving drinks from that which is primarily serving food? When and how many tables and chairs turns a shop into a café? When does the deposit of material that is primarily for disposal (ie waste) become an operation that is primarily the  reuse of the same material (possibly for landscaping or soil conditioning)?   And this is without reference to the advertisement regulations.

So what might be the material differences between a stereotypical industrial arable farm and an organic smallholding:

Productivity  - the smallholding  is likely to be more productive if measured in terms of weight, nutrition, variety and per unit of energy. It will be producing carbohydrates in the form of roots (inc potatoes) and not cereals by relying on a range of organic inputs

Biodiversity – the smallholder would have smaller enclosures (more hedging) and with agroforestry and/or permaculture systems would have a much greater variety of birds, mammals and invertebrates. Using less insecticide and herbicide could be better for biodiversity and soils.

Drainage and flooding – very topical and the finger of blame being pointed to some farming practices where water runoff is encouraged or not delayed (with associated soil depletion) compared to farming practices that include swales and planting to increase porosity and water retention.

Carbon emissions -  there are varying estimates of the carbon emissions attributable to agriculture; <50% of global emissions by United Nations Conference on Trade and Development, 13% of UK emissions by the Committee on Climate Change.  The practices that are significant in this respect are land use change associated with forest clearing, cows and other ungulates, meat in general as an inefficient source of protein, nitrogen fertilizers and fossil fueled machinery.  Corn made into motor fuels could be added in.  The smallholding is likely to be less carbon reliant in all these respects as well as reducing some transport costs if aimed at local markets (the logistic operations of the large grocers are very efficient and could in theory run on electricity or bio-gas).

Local employment -  it is possible to make (scratch?) a living off a couple of acres of productive horticulture that probably includes elements of local distribution and farm gate sales/prices.  Large scale farming can be sub contracted to the exclusion of any local jobs and some very large and expensive kit can effectively extinguish local farming jobs.  There are estimates of the need for about 1 million new farmers to both replace those reaching retirement and to  make farming systems more labour intensive for other reasons.

Health and wellbeing – planning has always seen the improvement of living conditions (eg decent homes, lifetime homes and neighbourhoods) as important objectives. Public open spaces, recreation and play facilities are provided through the planning system.  The limitation placed on changes of use to public houses and suggestions that fast food take-aways should be limited near to schools illustrate these concerns.  The (organic) smallholding would make claims that its growing practices and its produce are healthier than the industrially produced alternatives.  Community Supported Agriculture or village farms could bring a social element into the equation.

Sustainable development – a very wide subject where smallholdings could claim that 80% of the global food supply comes from smallholders and that large scale agriculture with many manufactured inputs (machinery, genetic modification and chemicals) is still at an experimental stage.

Food security – since 1976 (Government Circular  - Food from our own resources) food security has not been a Government priority, and less so while there are many producers of cheap food wanting to sell into the UK.  However it was seen that security can operate on a another scale when the strike involving the refining of fuel for trucks threatened to empty the shelves in three days.  It has to be said that small scale growing, processing and distribution would have to expand substantially to affect the food security of a population of 60 million.

A strong case can be made that different agricultural practices have measurably different impacts in areas that are already accepted as being ‘public interests’ and being controlled by the planning system in different areas.  If the adverse impacts from agriculture are likely to stay roughly the same or actually deteriorate in the above respects without regulation then Government should be looking at ways to bring about improvements (including the land use planning system).   There are already chinks of light in the NPPF reference to garden cities as the recommended model for large scale housing, one that included areas for market gardening and linking town and country. The presumption in favour of sustainable development could also form the basis for arguing that food supply systems will become less sustainable without government controls.

All that is needed is well informed (and connected) lobby.

A planner at the Oxford Real Farming Conference

I gather that 850 people attended this event over the two days that sought to define the essential elements of 'real farming' (organic, diverse, local, labour intensive etc) and then explore ways in which real could become normal.  Having written about planning for the three Rural Resettlement Handbooks starting in 1978, Practical Self-Sufficiency and Undercurrents I found it difficult to be uplifted by the enthusiasm and genuine hope the exuded from the speakers and delegates.  I found that the potential role of the planning system was being ignored and at every session I had to put in a shameless plug for this Blog where I suggested that some of the ways in which the planning system could work for them could be found.  I offered to hold a lunchtime workshop to which two people came.

In the previous Blog I have quoted an extremely useful paragraph from the NPPF on the single challenge of flooding and climate change (also quoted in the January edition of The Planner), and those looking to advance the cause of real farming might find the following of some use.

"161.Local planning authorities should use this evidence base to assess:

●the needs for land or floorspace for economic development, including

both the quantitative and qualitative needs for all foreseeable types of

economic activity over the plan period, including for retail and leisure

development;

●the existing and future supply of land available for economic development

and its sufficiency and suitability to meet the identified needs. Reviews of

land available for economic development should be undertaken at the

same time as, or combined with, Strategic Housing Land Availability

Assessments and should include a reappraisal of the suitability of

previously allocated land;

●the role and function of town centres and the relationship between them,

including any trends in the performance of centres;

●the capacity of existing centres to accommodate new town centre

development;

●locations of deprivation which may benefit from planned remedial action;

and

●the needs of the food production industry and any barriers to investment that

planning can resolve."

Every year the Conference attracts the most intelligent and articulate group of people with a very encouraging number of the younger generation.  The planning system has remained so off-putting that it has never really been put in the position of having to acknowledge that  'real farming' should be supported and privileged in the public interest.  It has been a minority pursuit where the occasional proposal made by a very determined individual has established a residential smallholding in the countryside on the basis of proving essential need.  Meanwhile use of the urban fringe remains in use by industrialised agriculture and horses.

I wonder what it would take for 850 intelligent and articulate people to actually produce the evidence referred to in para 161 to convince the 'planners'  that they should be removing the barriers to investment in  real farming?

Just as the planning system only acknowledged that there was a material difference between a house and a house that could be afforded by a person on local wages when this was accepted by a judge in 1992, the case could now be made that there is a difference between agricultural land that can be afforded by horse owners and speculators and that where the price bears a close relationship with the value of what could be produced.  This would justify the use of s106 to provide affordable land and associated affordable housing when developments around settlements are being considered (more detail in previous Blogs).

However, the planning system cannot yet differentiate between real and industrial farming.  If and when it  became clear that this would be reasonably necessary in the public interest then the law would need to change to make changes to and between agricultural uses 'material' for the purposes of planning control.  There are many considerations that are already taken into account in the determination of planning applications that have come to the fore since the drafting of the original legislation in 1947 which would justify a change in the law.  Different types of farming imply different treatment of soils, and different levels of biodiversity, employment, health, water run-off and sustainability.  When the real farming lobby creates the evidence base for being privileged in the exercise of current planning controls, this could also be used to lobby to change the law to enable this support to be widened.

For the avoidance of doubt

In response to the reports of repeated flooding in Cumbria and a
Guardian newspaper headline, "We really need help...", I  sent the following
letter to the paper.

"For the avoidance of doubt, and various Ministers seem to be
determined to sow doubt through measures designed to slow or even
reverse the progress in reducing carbon emissions, it is established
Government policy that the flooding being  experienced around the
country is linked to climate change. 

Section 10 of the National Planning Policy Framework published in 2012
of which the Government isso proud is titled "Meeting the challenge (nb in the singular)
of climate change, flooding and coastal change.".  There follows advice about,
'...radical reductions in greenhouse gas emissions... and supporting
the delivery of renewable and low carbon energy...this is central to
the economic, social and environmental dimensions of sustainable
development.', in support of which there is a 'presumption' in the
NPPF.

Whilst most of us are not in a position to provide the practical help
really needed by the victims of flooding and coastal changes, we are
all capable of reducing our personal carbon emissions and making it
clear to the Government that we support the level of emissions
reductions implied by the NPPF and its recent pronouncements and
agreement reached at COP21 in Paris."