Housing and Planning Bill technical details

For those with about 5 hours to spare and not wanting to spend these reading my blog posts you could amuse yourselves by going to
https://www.gov.uk/government/consultations/implementation-of-planning-changes-technical-consultation
and helping the Government sort out the mess that will be created by the Housing and Planning Bill when it becomes law later in the year.

This consultation has been designed by somebody with far more knowledge and understanding of the planning system than those who drafted the Bill itself.  The questions reveal the complexities in the system all of which have the potential for unintended and unfortunate consequences.  If the Bill was certain in its outcomes (as legislation should be?) there should be no need to consider the technical details  in such depth. None of the relies will be considered by Parliament.

This consultation reminds me of the very serious problems that the planning system should be addressing; desperately unfair distribution of housing and its unaffordability, climate change, local food systems, excessive mobility and limited accessibility, inflated profits from landownership and declining public services and infrastructure.  All very big problems and all untouched by the major piece of legislation from the 2015 to 2020 Government. I suppose we should not expect much better from legislation drafted by the Treasury but very galling for about 24,000 qualified planners having to learn, understand and apply new rules that appear to be counter-intuitive and counter-productive.

And who will be blamed when these changes do not meet their declared purpose? and will the Government introduce more changes any more likely to have beneficial effects?

I was told by somebody who spends their life studying the planning system that this Government is deliberately destroying the system by increasing the incoherence and creating chaos. Whilst this is bound to be the effect of the proposed changes,  I can't see this logic in that there will have to be a planning system of some description and even the most stupid or clever government minister would want a system that could deliver on their agenda rather than fall apart. Or am I being naive and the whole caboodle will be privatised...

Development Plans must mitigate against climate change

I wonder how many people involved in the planning system are aware of the insertion by the Planning Act 2008 of  182 .Development plan documents: climate change policies into 19 of PCPA 2004 (preparation of local development documents) after subsection (1), the following apparently innocuous clause?

“(1A)Development plan documents must (taken as a whole) include policies designed to secure that the development and use of land in the local planning authority's area contribute to the mitigation of, and adaptation to, climate change.”(emphasis added)

I1S. 182 in force at 6.4.2009 for E.W. by S.I. 2009/400, art. 3(e)

http://www.legislation.gov.uk/ukpga/2008/29/section/182

I think that we were excused in overlooking this provision (and I include myself) as this did not prove very easy to find and does not appear to have been applied by those making plans or those engaged in their examination.  I don't think that the examiner to whom I have recently been giving evidence (who seems to be very experienced and knowledgeable) had ever had to consider whether a local plan had been compliant with this legal requirement (note the word "must"). It was disappointing that he seemed to be looking for wriggle room in respect of s39(2) of the same Act despite a clear absence of evidence that the Plan in question would contribute to the achievement of sustainable development.

In this recent case the council's sustainability appraisal had noted that almost all the policies and proposals would have 'minor negative' impacts in respect of carbon emissions with no 'major positive' to result in mitigation of any kind, let alone the level required by the Climate Change Act  and 4th/5th carbon budgets.  Why should there be any concern that the inspector will find some line of reasoning to argue that a development plan that proposes 40% growth and jobs implying probably the same growth in carbon emissions (if not more, due to added  congestion on the roads) would be  'sound'?  

The first reason is that, in the absence of an adopted plan, there is a concern that unplanned for sites will continue to be permitted in the absence of a 5 year land supply.  Whilst this should not matter hugely if such developments were genuinely sustainable in accordance with the presumption  in the NPPF,  there is a general understanding that inspectors (and LPAs) have been approving developments that fall a long way short of any reasonable measure of sustainability.

The second reason is that the inspector might find it difficult to find a plan to be unsound on grounds based on s19,  fearing a legal challenge from the LPA and/or concern from HQ that this would set a precedent for the preparation for all plans to effectively mitigate carbon emissions! However, the QC representing the LPA made no attempt to rebut the assertion of unsoundness on this legal ground and the development industry would be unlikely to challenge due to the benefits derived in the no-plan world. 

Where a point is arguable (although I can't see that the plan in question meets the s19 test) wouldn't it be better for decision-makers to err on the side of those seeking to protect the environment, leaving the spoilers the opportunity to challenge, rather than vice versa?

Rural Planning Review

One, if not the main purpose of this Blog  is to encourage people to engage with the planning system.   The Government is currently carrying out a consultation on planning in rural areas,  found at the following link

 https://www.gov.uk/government/news/boosting-productivity-in-rural-areas

Unfortunately,  the Campaign for Real Farming, the Soil Association,  Forum for the Future,   Landworkers Alliance,  Community Supported Agriculture are not on the list of consultees. If the response to this consultation is to show that there is an appetite for what Colin Tudge would describe as “enlightened agriculture" there needs to be a substantial debate amongst that fraternity to explain why the countryside cannot continue to be a playground for the rich.   The consultation is based on  an assumption that there should be less regulation in terms of the use of land and buildings which would enable  rural communities and economies to flourish.

Those responding to this consultation might consider  pointing out that there is a need for mechanisms to enable land to be made at affordable prices (i.e. genuinely related to productivity and not investment) just as affordable housing has become part of planning controls.   Any mechanism for providing affordable land should include a mechanism for providing associated housing (see earlier blogs that explain how planning conditions or obligations can be used when permitting housing on the edge of towns and villages).  Rather than  supporting residential conversions of agricultural buildings in locations very unsuitable to housing, these could be an invaluable resource for rural businesses including food processing and distribution.   Having  introduced the  “presumption in favour of sustainable development" into the National Planning Policy Framework,  this has not, to my knowledge, been applied to agricultural developments. Unlike the earlier Productivity Plan issued by the Treasury and Defra,  this latest consultation includes the Communities Secretary, Greg Clark. In these circumstances, replies the consultation can usefully refer to the NPPF;  the 'presumption', paras 160 and 161,  the support for Garden City principles (which included market gardening) and the benefits of local food systems in respect of carbon reduction and health/well-being.

All these changes imply either more regulation or a different interpretation of existing policy than the Government is used to. If the consultation is ignored by those interested in agro-ecology and local food systems then we only have ourselves to blame if the Government continues with its current policies.

Flooding, carbon emissions and section 10 of the NPPF

Just in case there are people out there who might want to contribute to the select committee investigation into flood prevention these are some of the points that could be made:-

 Expectations should not be too high in respect of the ability of any agency to predict the future of weather, climate or flooding.  Given the outcome of the COP21 in Paris and the national pledges it would be sensible to estimate climate, weather and flooding on a 3 degree rise in global temperatures.   Although circumstances might change, currently there is no evidence for any other basis for such calculations.

Planning has been carried out on assumptions that are proving to be completely wrong. Extreme (called ‘unprecedented’) and devastating weather events are occurring at about 1 degree of global warming.  Measures should now be considered which allow for events at significantly warmer temperatures.  Such measures should not be rejected because some optimism bias that makes it conceivable that the worst will not happen.

The planning system has been extremely bad at preventing building in known or suspected flood plains.  This is not because of the policies that have been accepted at national and local levels but mainly due to the Government’s desire to see housebuilding rates maintained and increased.

Due to section 10 of the National Planning Policy Framework ‘Meeting the challenge of 

climate change, flooding and coastal change’(emphasis added), all those involved in facing
the issues of flooding and climate change should  be following the Government’s lead that 
sees this as a single and inseparable challenge.

There is a obvious problem that the Chancellor has decided that much if not most of the

 Government policy in section 10 is not being followed by the Business, Environment, 
Transport or Communities (inc planning) Ministries. 

The most important issue for this review of policy is to take into account the excellent existing policy guidance at section 10 of the NPPF and then to consider why this is not being followed and what can be done to reactivate the policies in respect of carbon reductions in building, power generation and transport.  Carbon and flooding are also closely related in the agriculture sector that is a good reason to bring agricultural practices under planning control.   This is a very complex matter but its importance would justify a detailed inquiry by this or some other Government/Parliamentary body.

Summary

The problem is not with existing policies but in their implementation.

Unless the Government gets serious about reducing carbon emissions any flood prevention 

measures are likely to prove futile.

.

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.