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More Planning News

More Planning NewsPlanning seems never to be off our pages at the moment, but events in the world of planning are moving apace, so we thought we should keep readers up to date.

So here is our latest selection of news and views about the wierd and wonderful, 'Alice in Wonderland', world of planning.

We've FOUR mini-articles for readers:
1). Breaking news about a small site planning appeal;
2). developments at Staining; and
4). developments in the Wesham application
3). the mayhem created in planning by policy changes in DCLG

1). PLANNING APPEAL: SMALL SITE  PRECEDENT?
Our attention was directed to a small scale planning appeal last week. We think it could have potentially significant financial consequences for Fylde - if, as we suspect - it turns out to be precedent-setting.

It concerns what is known as a Section 106 contribution (sometimes called 'Planning Gain'). This is a payment made to the Council by someone who applies for planning permission, and is used to fund community improvements. The power to accept such money comes from "Section 106" of the Town and Country Planning Act 1990.

The practice has its roots back in the 60's and 70s when developers were often required to provide some open space as part of a new housing scheme, and to maintain it for perhaps a year then hand it over the Council as public open space.

Over time this requirement changed, and changed again. First, landscaping, then playgrounds were added-in to what had to be provided. Then the maintenance period grew to five years, then in some cases ten years, then to a commuted sum payment, then to something like an endowment.

Where small sites could not make a meaningful contribution on the ground, a cash payment for community benefit was encouraged and agreed.

This practice developed and grew until today, when developers can be asked to provide financial contributions for all sorts of things.

The underlying principle is that developers pay Councils in order to offset the impact of their development.

For example, if a developer were to build 2000 new houses somewhere, there would likely be an impact on local schools, roads and so on - which the Local Authority would otherwise have to accept and charge to local taxpayers.

In that situation, there might be a Section 106 agreement tied-in as part of the grant of planning permission. With 2000 houses, the developer might need to make quite a significant contribution towards the provision of a new school and new roads, or bus services and some socially subsidised housing.

If you can forget the fact that such facilities always used to be provided by taxation, it doesn't seem a bad idea in principle. But where it falls down is on small developments, and specifically with developments as small as a single property.

We recall a friend (several years ago and just after present rules appeared at Fylde) whose son had bought a shop with living accommodation above in St Annes. He proposed to turn the shop into a ground floor flat . He was horrified to find Fylde's planners asked for a percentage of the sale value of the finished property to put toward an unspecified community benefit. From what we recall, his scheme didn't go ahead because of this requirement.

Fylde set its policy on this matter in something called its 'Interim Housing Policy' - where it says that the Council will seek financial contributions towards community infrastructure, and in particular, open space (where this is not being provided on site); public realm works (where there are identified schemes in the area); and affordable housing (on sites below 15 dwellings).

They go on to say that the size of the contributions being sought by the Council is considered to be very low, so the Council expects them to be paid in full in most circumstances.

In the urban area, and for large sites, the Council expects to negotiate for 30% of the dwellings provided to be 'Affordable', unless the developer can demonstrate by means of verifiable evidence that the development would not be viable with that percentage. In some circumstances, cash payments may be made in lieu of on-site provision, and sums for other community benefits may also be required.

For small sites in urban areas (involving 14 or less dwellings), the policy expects to negotiate a financial contribution of 5% of the open market value of each dwelling "towards the facilitation of affordable housing within the borough."

And where a proposal is in an area where there are "declared town centre or other public realm improvement schemes", the Council expects to negotiate a financial contribution of 2.5% of the open market value of each market dwelling towards those schemes.

Finally, where there is no open space to be provided on the site, (or the requirement for open space on the site would be less than 0.2 ha), the Council will negotiate for a financial contribution of 2.5% of the open market value of each dwelling in lieu of on site provision of open space.

In rural areas, the percentages for small sites are the same, but the trigger number of dwellings for 'large' and 'small' is different.

So what we have in combination here, is that on a small site, the Council expects to negotiate to receive around 10% of the sale value of the finished property for community benefit.

We figure that's why our friend's son didn't go ahead.

We have just learned of another local instance where this requirement has been brought into question. It appears in an application to convert existing offices in Lytham into a ground floor flat and a first/second floor maisonette.

The application was refused by Fylde Council in what appears to be a 'delegated decision' (that means it was thought not necessary to trouble the Councillors with it, and an unelected officer made the decision).

From what we can see from the paperwork, there did not appear to be any major planning reason why the conversion should have been refused. It seems to have been refused because the applicant wouldn't pay enough in 'community benefit' money.

The wording of the refusal said " That in the absence of any legal agreement or other such mechanism being in place to secure either the on site provision, or contributions in lieu of on site provision, of affordable housing, public open space, and public realm improvements there can be no certainty that the development will deliver the necessary affordable housing and infrastructure improvements as set out in Fylde Borough Council's Interim Housing Policy.

On that basis the scheme is contrary to the Interim Housing Policy and its supporting Development Plan policies and associated guidance namely Paragraph 50 of the National Planning Policy Framework and Policy L5 of the Regional Spatial Strategy for North West England in respect of affordable housing provision, Policy TREC 17 of the Fylde Borough Local Plan in respect of public open space and Policy EP1 of the Fylde Borough Local Plan in respect of public realm improvements."


And that was intended to apply to what began life as a house, was converted into an office with accommodation above, and was now proposed to return to a dwelling.

We can see that small property situations like this must be a very tricky situation for Fylde's planning officers. They see a need to be consistent, so it's difficult for them to envisage exceptions - especially where an exception might become the first leak in the dam.

But it seems wrong to us that (especially having paid a fee for the planning application) an applicant is refused permission - not because the application is bad in design terms - but because they won't pay a big enough sum in cash.

Readers will know that we're not enamoured of having decisions delegated to officers at all. We've said before that in our experience, the natural state of a local authority officer gravitates toward the de-humanising of decisions. Most are technocrats and professionals. Ironic detachment and cool efficiency are usually prized qualities. The humanising effect of Joe Public as elected councillors is - in our view - an essential offset to this, and that's why in principle, we don't support the idea of delegated decisions.

That said, the matter was taken as delegated, and refusal was advised to the applicant who, we understand, felt a sense of injustice at what he was being asked to pay. He felt he had tried to reach an equitable solution but was met with intransigence.

He decided to appeal the decision.

That's quite unusual in an application of this size. Mostly folk with less experience of 'the system' simply give up and go away at this point.

But not in this case.

The appeal was dealt with by written representations, and we think the Inspector's decision is something of a bombshell for Fylde.

Not so much because the Inspector went against them, but for the underlying logic that he used.

Far from supporting the officer's decision, he has - in very polite terms - torn it apart.

He said Fylde believed the case hinged on whether the conversion of the office into residential use would make an appropriate contribution to the provision of affordable housing, public open space, and public realm improvements in the area.

He says the principle of development had been accepted by planners, subject to the payment for affordable housing, open space and public realm works.

He then takes each of these in turn and, in effect, says that Fylde has no proper basis to make the charges it sought.

He says "I find no evidence to suggest that the mechanism for calculating financial requirements with regard to affordable housing is based on a robust evidence base." He goes on to say that in relation to small developments, he finds the Interim Housing Policy does not accord with the development plan or the National Planning Policy Framework."

Oh dear!

He makes similar points for the sums required for the Open Space contribution, and for the Public Realm payment.

He concludes by saying, in effect, that - at least as far as small sites are concerned - Fylde's Interim Housing Policy is pretty useless. His wording is actually "I have not found the IHP to be consistent with the LP [Local plan] or the NPPF [National Planning Policy Framework]. I therefore accord its requirements very little weight"

And he granted the appeal with the only condition that the development should start within three years.

Readers can follow this link for the full text of the planning inspector's decision as a pdf file

Our interpretation of his judgement is that it more or less kills the standard 'small sites' policy part of Fylde's Interim Housing Policy stone dead as far as planning refusals based on an unwillingness to pay Fylde's standardised contributions in lieu of on site provision.

It looks as though where a contribution is sought, the Inspector expected it to be calculated individually for each application according to its circumstances.

If that were to be universally applied, it's a pretty significant addition to the workload for FBC planners, and they might need some economics experts to make viability and financial assessments for them as well.

And apart from the policy considerations, it's likely to leave a hole in the 'planning gain' income that Fylde might otherwise have expected to take in for other small scale conversions like this one.



2). STAINING DEVELOPMENTS
To Staining. Always a pleasure to visit the village which in the early days of 'Fylde in Bloom' so eagerly embraced the concept, and transformed its look from somewhere you went through, to somewhere you went to.

But this time it was a slightly less happy visit. We'd been alerted by locals to proposals from Jones Homes that would see just over 50 new homes built on land off Chain Lane.

Folk in Staining seem not to be impressed with this idea.

Staining counter-exhibitionAs we arrived, we couldn't actually get into the exhibition proper for a mass of bodies in a sort of 'counter-exhibition' that was being held by protestors in the foyer area where a representative from Jones Homes was being harangued by those wishing to object to his plans.

It was all good natured (well mostly so, although we did notice one quite belligerent chap who insisted that his human rights were being infringed by the development and he planned to take the developers to the Court of Human Rights as, he said, one chap in France had already done with a developer there).

The hapless developer-representative was demonstrating his possession of quite a thick skin and, for the most part, giving as good as he got. That said, in the heat of the argument, he did seem to us to be a bit selective in some of the things he said.

But there was no doubt.   People were not happy with the great benefit he was about to bestow on them.

The big fear amongst those objecting seemed to be that this plan was simply one more step in a salami-slice scheme that they believe would eventually see up to 300 additional homes built in Staining.

Locals argued to us that last year - and also against local sentiment - Jones Homes won planning permission to build 28 houses on land outside the settlement boundary just off Chain Lane - in what local people claim was sold to them as a tidying-up and squaring-off exercise for the settlement boundary.

This plan blows that argument out of the water, because it extends onward from last year's permission that 'squared-off' the settlement boundary.

And when you look at the plans you can see exactly what's worrying them.

The layout of the first 28 homes left a perfect point of connection for the site now proposed, and the present one leaves a similar (and apparently unnecessary) 'blank' connection to the green fields to the west of it. They also seem to be calling this application 'Phase 2' which at least implies that the first development was not a one off so there could, presumably, be more.

Having listened to the objectors and seen their home-made presentation boards in the foyer, we went into the developer's exhibition. It was, as you would expect, professionally presented with a couple of smart young men in suits on hand to explain things. We felt a bit sorry for them, they had the look of people who knew how unpopular their proposals were, but they knew they had to stand there and take the flak for them. They were however, unfailingly polite.

Jones Homes exhibition at Staining

So far as we can tell, there has been no submission of a planning application for these properties yet, so this appeared to be simply a 'meet and consult the public event' which developers are more or less obliged to hold in advance of an application these days.

So what of the proposals on display?

Well, the first thing to say is that they might well change before an application is submitted, so it's dangerous to be too specific. But the plans were well advanced and professional, so we suspect any application would be quite close to them.

To us, apart from the usual issues of threatened overloading of social infrastructure; damage to green land; and being outside the settlement boundary which seem to accompany most applications these days, there were two big problems. The access, and probably even more importantly, drainage.

Access to the proposed site is via the development which got permission last year, (i.e. it is an extension of it). Ultimately, that access will appear close to of not as part of what is already a complicated junction outside and opposite to The Plough pub, close to the road called "The Nook" which those with greying hair will remember traversing to get reclaimed parts for cars and motorbikes four or five decades ago at the infamous 'Nook Garage'.

Junction in the centre of Staining

Whilst you might argue that the traffic from 28 extra houses might not make too much difference to the problems at this junction, adding more, and increasing it to over 70 houses is going to create problems of the sort that you don't need a fancy computer junction-modelling programme to map out for you. And if locals are right about the ultimate size of what they believe are undisclosed future plans, and we look at traffic from something in the order of 200 or 300 houses exiting at that junction, it would be a nightmare.

The junctions in Staining are fine for a village, but in our view, they're unsuitable for a town. The question here is - how many houses have to be built before Staining village becomes a township?

But the biggest problem is going to be drainage.

Staining is notorious for its drainage problems. It lies close to the belt of mossland that runs from Pilling to Southport and beyond. It is a couple of fields away from Martin Mere, whose drainage exits toward Mythop Road and past the lower parts of Whyndyke Farm before passing through the land off Queensway in St Annes and onward across Lytham Moss to the Ribble.

Mossland is mossland because it is one of the lower lying areas of Fylde, and it floods. The water builds up. Each year, the winter's dead plant remains from the land cannot decompose underwater (in the absence of oxygen) so it turns into peat and the land becomes acid. When this condition affects vast tracts of land it becomes a moss (because sphagnum moss is the most notable plant that can survive in the acid peat conditions). Wherever you have mossland, you can expect flooding.

So with Staining. It's not uncommon for the village to be cut off from points south because of flooding across Mythop Road near the Ernie Bonds buildings or even closer, in the village itself. There also properties that flood regularly - much to the dismay of their owners. Such flooding is not inundation by rivers or by the sea. It is inundation by groundwater. And that's before more houses are built.

Readers will also be acutely aware from our articles elsewhere of the problems of drainage that will soon affect the beach designations. We have also spoken of the work that United Utilities is undertaking to increase capacity in an already overloaded sewer and drainage system.

The way that the Environment Agency and United Utilities have chosen to get around such problems in relation to development (legislation does not allow them to object to additional housing development on the basis that they don't have the capacity to deal with the effluent), so they have come up with the idea of 'sustainable drainage systems' (shortened to SUDS). The underlying principle here is that water that lands on roofs, drives and hard surfaces has to be slowed down so it doesn't get into the field drains and watercourses any faster than it would if it fell on a field.

There are many ways this can be achieved - whether it's making hard surfaces more porous (not roofs, obviously!) like using gravel, or finding some way of holding the water back temporarily - like a pond or water feature whose level fluctuates and balances out the drainage surges, or by using large underground storage tanks or pipes.

Now, dear reader, you might come to the view that such artificial constructs as underground tanks do nothing more than delay the eventual problem. To us it's all unsustainable - and the bubble will eventually pop.

The real answer has to be to stop building on land where there are significant drainage problems, or where the development leads into land where there are drainage problems.

But that's not going to happen anytime soon. A return to the artificial and unsustainable 'growth' that caused our economic woes is high on the Government's agenda, so the drainage problems will continue to rack up, and places like Staining and its downstream neighbours can only get worse because of it.

We had a look at how the developers proposed to deal with the drainage.

Propsoed SUDS Drainage arrangement

In essence, they are keeping the sewage separate (as they have to) and that will be in traditional 6 inch pipes that connect to the existing 28 house scheme. But the 'surface water' from this development is going to be contained in huge, four-foot diameter pipes and massive manholes, under the roads.

We asked about how these would join with the development that's already under way and were told that it would be throttled down to a smaller bore pipe before the 28 house scheme, and the big pipes underground in the proposed 50 house development would gradually fill in times of heavy rain, and would then slowly empty themselves over time as the smaller bore pipe was able to accommodate it.

To be honest, we thought this arrangement was unlikely, and wondered if it was just a way of the nice young man getting over a difficult question we had asked. We suspect there will be a more complex answer.

But we're not water engineers, so we have to trust what we're told. Drainage is mostly a gravity driven system because water flows downhill, and to our mind, when you do the sort of thing that was described to us, what happens is that the pressure in the smaller bore pipe increases, and you end up not with a drain, but with something closer to a water-cannon at the far end.

Furthermore, if locals are right and there are plans to extend this to 200 or 300 houses, and if the same principle were to be used, we wouldn't like to be living on the development where the throttling back takes place. With the pressure from 200 houses 'upstream' we could envisage some quite attractive waterspouts, (or at least more flooding) in the lower reaches of the system unless each part of the development has its own separate 'flow restrictor'

And if that happens, it all seems to be getting too complicated to be sensible to us, so we're inclined to agree with the folk in Staining who don't think this development is a good idea.

We'll keep readers in the picture.



MOVES IN WESHAM
In our article 'Planning Madness' we reported the re-submission of the same application only three weeks after the developer was refused permission by Fylde's Development Management Committee.

We also said "We think they [FBC] could have declined it under Section 70b of the Town and Country Planning Act 1990 which allows a resubmission to be declined if it is a "similar application" and has been refused by FBC, and the time within which an appeal could be made to the Secretary of State under section 78 has not expired."

In effect this new application overlaps the period in which the developer could have appealed to the Secretary of State about Fylde's refusal of their application, and as far as we can tell, in those circumstances, FBC would have been within their rights to refuse to accept a resubmission of the same application if they chose to do so.

If we're right, the question then becomes who decided whether to accept it or not, and whether they had the authority to do so.

We hear that others who oppose the development might have had the same thought as us, and there are high level discussions and meetings taking place about this matter.

We think there's more to come here, and will keep readers in the picture when we are able.


MINISTERIAL MAYHEM?
Also in 'Planning Madness' we highlighted the awful conflict that is now at the heart of planning. From our - uninformed - perspective it looks almost as though the former Labour Government who so loved detailed regulations, were sending planning in the direction of more and more red tape by issuing Guidance and Policies that local councils had to follow.

Then in came the 'breath of fresh air' Eric Pickles - who we dubbed St Eric. He took Labour's planning supertanker and began to execute a turn of around 180 degrees so it pointed toward local people making all the local decisions. The local plan would reign supreme. There would be no more Regional Strategies and no top down housing targets. Localism was the future, and local people would decide what they wanted.

The problem came when it became clear that what quite a lot of them wanted was almost no more big housing developments on green land.

That was the cue for interference by - it looked to us like - the Treasury, who had decided that 'growth' - largely through a big housebuilding programme - would help kickstart the economy.

Whether they actually believed that (we can't imagine they would be so foolish), or whether - like taking away park railings in the war, it was a visible effect that something was happening - we're not sure, but the first nail in the coffin of St Eric's Localism Act was the imposition of the new National Planning Policy Framework that we've covered in some detail elsewhere.

That produced huge opposition and it was slightly watered down before it was issued. But it has still had the effect of opening the floodgates to developers up and down the country who now see a window of opportunity.

Next, David Cameron re-shuffled what turned out to be an anti-planning minister (Nick Boles MP) into St Eric's Communities and Local Government Department and put him in charge of planning as 'Parliamentary Under Secretary of State for Planning'. (Readers will note here that what was previously 'Decentralisation and Planning' has now become just 'Planning' - and that, in itself, speaks volumes).

We've quoted Mr Boles before, but it does no harm to remind readers that this is the chap who before becoming a Minister said:

"Do you believe that planning works? - that clever people sitting in a room can plan how people's communities should develop? Or do you believe that it can't work? I believe that it can't work. David Cameron believes it can't work. Nick Clegg believes it can't work.

'Chaotic' therefore, in our vocabulary, is a good thing.

Chaotic is what our cities are when we see how people live, when we see where restaurants spring up, where they close down, where people move to.

Can you predict any of that?

Would you like to live in a world where you could predict any of that?

I certainly wouldn't"

We think he looks increasingly like a Fifth Column in St Eric's Department and his real purpose is to act as a spoiler: to squash all the air out of localism, and to reshape planning policy through another turn of the supertanker - or maybe to try and sink it altogether.

His latest wheeze is to set up a review of the guidance that underpins the National Planning Policy Framework. This review has been little-publicised but it established Lord Matthew Taylor of Goss Moor to lead and chair a review of the existing 6,000 pages of planning practice guidance which currently supports the implementation of national planning policy.

It is intended to dramatically reduce the existing guidance, and ensure that new guidance supports "effective planning".

From what we can see the only good bit is that Councillor Mike Jones from Cheshire East Council is on it, but we suspect he will have his work cut out to hold anything like a sensible line in the Chancellor's 'dash for growth'.  Please see the update at the end of this article

Nick Bowles himself was reported as introducing the review by saying:

"The planning system needs to be supported by practical guidance that is clear and easily accessible if it is to be effective. Even planning experts struggle to navigate the 6,000 pages of guidance that currently supports the system. I am delighted that Lord Taylor has agreed to lead this review of practice guidance and I look forward to reading the recommendations of his expert group."

It is believed that initial recommendations are expected in time for the Government's Autumn Statement. These will include recommendations on prioritising which guidance is to be reviewed; an initial list of current DCLG guidance that could be cancelled now; and a recommendation as to a timetable for completion of the work on the remaining guidance.

The well respected CPRE group's spokesman said: "We are surprised and disappointed at how the Government has chosen to announce and run this review.

Despite the short timetable for the review and lack of consultation we will consider the issues in detail, making our views clearly known to Lord Taylor and his group. National planning guidance is critically important to making planning work well, for example in ensuring that we get more investment in town centres and Ministers keep track of large developments in the Green Belt. There should be a full and open consultation before any decisions on the future of this guidance is made".

As if.

But, as we predicted, as people across the country wake up to what is happening to planning, more and more voices are being raised in alarm. Not untypical in this is Cherwell, where MP Sir Tony Baldry became so concerned he published correspondence between himself and the Rt Hon Greg Clark MP (Former "Minister for Decentralisation and Planning" in St Eric's department, but now - since the recent reshuffle that brought in Nick Boles MP - he is 'Financial Secretary to the Treasury'. Readers will no doubt come to their own view about his change of departments). Mr Baldry had written to him about what could be considered in the five year land supply in Cherwell and was told by Mr Clark:

"The policy is clear that unimplemented planning permissions count towards the five year supply. The footnote does require consideration to be given to whether such permissions can be expected to be built. This is necessary because it would otherwise be possible for councils to meet their housing requirements by approving applications for land this is never likely, in practice, to be financially viable to build out. So viability does have a role to play.

The footnote makes clear that all sites with planning permission should be considered deliverable "unless there is clear evidence that schemes will not be implemented within five years". So the onus of proof is, correctly, to show clearly that they will not be implemented if they are not to be included. That seems to me to be a sensible approach."

These views appear at odds with what is really happening. (see here for a copy of his letter)

Clearly as these shifts in DCLG policy take effect, there will have to be some cunning linguists in the Government if they are to square :

  • the former drive to localism and decentralisation,
  • the abandonment of top-down regional targets,
  • the introduction of a new top-down planning policy,
  • the installation of a Minister who does not even believe planning is a good idea;
  • the proposed abandonment and 'simplification' of the guidance that underpins all planning policy,
  • and a statement like the one from Mr Clark above.

Councils up and down the country are in turmoil as the aftershocks of changes to the planning system continue hit them. We've seen online fora where Principal Planning Officers are debating what the latest changes actually mean.

And many local councils are getting angry.

Fylde is no exception. We hear that Queen Elizabeth and others have now called for an Extra Ordinary Council meeting to debate the problems, and we expect the outcome of that to be letters to Government and the securing of support from other Councils in the UK for some more common sense.

The planning madness simply has to stop.

Dated:  2 November 2012

UPDATE 2 NOVEMBER 2012
The news is even less good than we thought. Thanks to our quick, well informed and eagle-eyed reader who spotted a mistake we had made. He advises that the chap on Lord Taylor's review is Cllr Mike Jones of Cheshire West Council, and he's not to be confused with Cllr Michael Jones of Cheshire East - who is squaring up to the SoS on Planning. We're grateful to our reader and happy to apologise to the two Mr Jones' if any embarrassment was caused.


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