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17 February 2014
When the Planning and Compulsory Purchase Act 2004 (PCPA) was introduced, many questioned how it would be possible to reconcile the aim for a faster planning system with the need for genuine and meaningful public engagement earlier in the process.
This aim will have been achieved in those cases where the risk of legal challenge later in the process is greatly reduced. However, those who predicted that the PCPA would sound the death knell for planning lawyers were wrong. So far lawyers have been closely involved, and this looks set to continue.
Interested developers are coming to the examination table armed with considerable legal resources, which is a measure of how important the new frontloaded system is being viewed. The cost for any party losing out will be high, with aggrieved parties quick to seek remedy in the courts if authorities do not comply with the new legislative procedures.
The early signs are that the new local development framework (LDF) system is not leading to more transparent decision-making, which combined with a complex web of overlapping and ill-defined legal requirements means that the opportunities to disrupt the adoption process with legal challenges remains as great as ever.
The LDF experience so far A faster and more reactive, but no less complex, planning system would indicate plenty of opportunities for the involvement of lawyers.
Local planning authorities in the South West region are now well underway in preparing their LDFs, which are required under the new PCPA reforms. Interested parties will also be keeping a close eye on the emerging requirements of the South West’s regional spatial strategy (RSS), into which there will be a public examination starting on 17 April.
Locally adopted development plan documents (DPDs) will need to be reviewed in accordance with their inbuilt monitoring and review mechanisms once the new RSS is adopted.
Developers who miss out on their housing sites being allocated in the current round of plan adoptions may therefore be presented with an early opportunity to promote them again.
However, the LDF experience across the country so far suggests that, in light of the opportunity for an early plan review following RSS adoption, some inspectors have chosen to place their faith in authorities and developers successfully delivering on very challenging housing supply targets, rather than seeking to allocate additional land to make up any potential shortfalls.
It is notable that this has been the adopted approach in spite of critical national and regional housing shortages and the Government’s desire for achieving a step change in housing delivery. This may increase the sense among developers of the critical importance of getting in early, rather than sitting on the sidelines and storing up arguments to air later on in the public examination room. It will be an immeasurably harder task for those who do not choose to engage in this way.
This does, though, sit happily with the aims of the PCPA to create a more frontloaded, transparent and robust planning system, with public consultation at its core. However, it is unknown whether early participation will necessarily carry with it a genuine opportunity to influence the shape of those planning policies.
The timetable for creating LDFs should follow the programme established by local authorities in their local development schemes (LDSs). However, many of these targets have been overoptimistic. Lack of resources is, as always, a significant obstacle to timely delivery, but another difficulty is that some local authorities do not possess the right in-house project management experience needed to achieve their self-imposed goals.
This lack of experience has already been identified by the Government as a potential barrier to the effective processing of major planning applications. The Government is undertaking a pilot study into planning delivery agreements, which aspires to bring a new project focus to the exercise. It expects to do so by identifying shared targets and goals, encouraging cooperative working between local authorities and applicants and determining ‘leadership’ responsibilities within the project team.
For the timely implementation of LDFs, the lack of local authority experience in this area is an issue that will certainly need to be resolved in the future, particularly as the LDS becomes used more proactively as a critical LDF implementation tool. This may give rise to opportunities for professional practitioners to offer their services to authorities willing to buy in this type of expertise.
If these delays are not resolved successfully, lawyers may see authorities failing to deliver on their strategic targets for housing growth and an increasing volume of speculative planning applications and appeals being submitted by developers. All of which is good news for the professional advisers.
The potential pitfalls Salutary lessons are being learnt from around the country, where many of the first local authorities to have submitted their plans to public examination have encountered significant difficulties. The core strategies at Lichfield, Stafford and Ryedale were declared unsound, and action has been taken to withdraw plans at Huntingdonshire, Shrewsbury and Waverley.
However, while significant resources are being devoted to ensuring that local development documents meet the new statutory requirements, the LDF process is also loaded with some potentially significant pitfalls in terms of meeting the requirements of the EC Directive on Strategic Environmental Assessment (SEA), and appropriate assessments under the EC Habitats Directive.
This creates an overlapping web of new procedural requirements, subsumed within the iterative process of the PCPA’s Sustainability Appraisal (SA). Not only does this create almost endless work for planning consultants, it contains many hidden legal dangers, since the Government has – largely in the interests of administrative convenience – advocated an approach that blurs these distinct legal requirements, with the result that the potential risks may not be widely appreciated.
For example, the SEA requires an environmental report to be consulted upon before the plan is adopted or submitted to the legislative procedure. This creates uncertainty about the correct legal approach when ‘new’ alternatives are thrown up late in the process. As Planning Policy Statement 12 states, with the new requirement for frontloading, this should not generally happen. However, it is the legal duty of the responsible authority to meet SEA requirements. There is also a lack of precise definition in terms of the extent of the duty to report on ‘reasonable alternatives’, which should take account of the objectives and the geographical scope of the plan or programme.
The precise boundaries will remain uncertain until these, and other problem issues, have been tested in the courts. There is plenty of evidence to suggest that actively involved parties and their lawyers are monitoring things very closely and will be waiting to take advantage of any procedural non-compliance, real or perceived, when the chance arises.
•Karen Cooksley is a partner and Ben Garbett is an associate at Bevan Brittan.