Special Measures for Planning?
Readers who are
registered to receive email notifications advising that a new counterbalance article has been published also receive newsflashes if important news is breaking and we have not had time to do a full story on it.
So it was with our last article about the Local Plan.
The notification email also carried a newsflash saying....
"The breaking news is that, in a shock move, Fylde's Planning Officers are not going to defend the Council's refusal of planning permission for two proposed residential sites near the Kirkham Triangle area.
In a hollow echo of the treatment dumped on Wesham residents not long ago, we understand that Fylde Council will not now contest the appeal which begins on Tuesday 2 July, but they will be represented by a barrister who will argue for a set of
conditions to attach to the site.
We began to worry about this a while back when late adverts and little information was available about it. We sensed that something was in the air, and we suspect this abandonment of defence has been in the wind for some time.
Unfortunately for those who oppose the development, the Kirkham sites do not have the benefit of a 'Rule 6' Party like WAG at Wesham - and if the Council, in effect, withdraw, it will be down to residents to convince the Inspector not to agree the
appeal. Possible, but definitely not easy.
We hear the two appellants have joined their schemes together and planning officers believe they have jointly satisfied all the objections the Development Management Committee advanced when it refused the applications. So they say there is no longer a
case to object.
We think there may be an ulterior motive for the large numbers of applications Fylde is granting (and not contesting at appeal) in recent weeks (apart from the NPPF) and we're on that case. We hope to bring more on it shortly."
appeal starts tomorrow at the Woodlands Suite at Ribby Hall at 10am and we will be there on Day 1 to report whether Fylde will - as we predicted in the Newsflash - offer no defence of their refusal of planning permission.
Sadly we can't attend on the other
days, but we will bring a pen picture of Day 1 proceedings.
But as we said in the counterbalance Newsflash, we think there could be ulterior motives for the advice Fylde's officers and its Portfolio Holder are giving to councillors on the Development Management Committee.
We're now in a position to expand on that.
In 'Planning Madness' back in October 2012, we published the following....
'In an extremely unusual move, Government has also recently said that developers will be able to take
their applications direct to the Planning Inspectorate if councils are consistently taking too long to make decisions.
This week, the new (anti) planning minister (Nick Boles) told a fringe meeting of the Conservative conference that the Government would put councils in ‘special temporary measures’ if they are taking too long to rule on applications, or having too
many decisions overturned on appeal.
We think he probably hasn't thought this through properly because if Government did that, there would be nowhere for developers (who were not very gruntled with the Planning Inspectorate's decision) to appeal.
Given Fylde's officers' apparent reluctance to advance robust arguments that support their own local plan policy, and the way they - or at least someone - seems to have convinced Fylde's more influential councillors to toe the party line on granting
permissions in spades, we wondered if the 'Special Measures' threat might hold any particular fear for Fylde.
Readers can make up their own minds from the 2011/12 data below.
||% all planning applications decided in 26 weeks
|| % major planning applications decided in 26 weeks
There are about 340 Councils on the Government's list (a small handful of which there is no 2011/12 data for). Fylde is placed around 320th out of 340 for it's % of deciding major applications, and around 305th out of 340 for its % of all planning
Since we published that article, the Government (well, at least the anti-planning Minister Nick Boles) has further clarified its view.
Earlier he had told the Conservative Party Conference: “What we are going to do is put in place something which we hope will be shot across laggards’ bows. You cannot go on taking the Mickey and if you do, developers will have the option of going to
the planning inspectorate direct."
True to his word, developers will, from this October, be allowed to make applications directly to the Planning Inspectorate (a Government QUANGO) if councils have what he describes as 'a poor track record' in the speed of their planning decisions and/or the proportion of applications
overturned on appeal.
This is likely to result in in local hearings being held by the Planning Inspectorate to determine applications if developers choose to bypass planning
departments that have been 'designated' by Government (designation is colloquially termed being in 'special measures').
Adding insult to injury, the Government has also said that Councils who are placed in special measures will not receive part of the planning application fee for work they do on behalf of the Planning Inspectorate such as putting up site notices,
notifying neighbours, and providing the planning history for the site.
There has been some uncertainty about whether a council has to fail on both of these measures or only on one of them.
When the scheme was announced last October, Nick Boles said that the detailed criteria had not been settled but it would be an objective measure involving **both the length of time an authority takes to decide planning applications and the proportion
of refused applications overturned at appeal**. Long running applications that were subject to Planning Performance Agreements would not be included in the timescale calculation.
But more recently the emphasis seems to be that either slow decisions *or* overturned appeals can bring about designation. (Growth and Infrastructure Bill, Impact Assessment p 19)
We understand that councils will be placed in special measures if they determine 30 per cent or fewer major applications within 13 weeks over a rolling two-year period from July 2011 to June 2013, or if more than 20 per cent of major decisions are
overturned at appeal during the assessment period. This is defined as the number of appeals involving major development that are lost, as a percentage of all major decisions made. Local planning authorities will not be liable for designation if they
decided ten or fewer applications for major development during the assessment period as a whole.
A House of Lords amendment to the legislation limited both these classes to 'major applications' which, we understand are likely to be those with 10 houses or more, or an equivalent amount of commercial space.
The first designations will be made in October this year.
After that, designated Councils will be reviewed annually and may have their designation lifted if their performance has 'improved'.
The online Planning Magazine 'Planning Resource'
analysed official quarterly planning application statistics, and revealed that seven local authorities - Horsham, Daventry, Halton, Hounslow, Fylde, Cherwell and Enfield - determined fewer than 30 per cent of their major applications over the first 18
months of the two-year period.
It commented "These authorities will need to improve their performance in the final two quarters of the two-year period in order to escape a special measures designation"
Despite blaming the National Planning Policy Framework, we can't help wondering if Fylde's rush to pass planning permissions as though there was no tomorrow is connected to the threat of being placed in 'special measures'
Horsham told 'Planning Resource', it had approved 78 per cent of major applications in the two years up to June 2013 and it believed the speed of determination of major applications over the period does not represent the true picture of the quality of
service provided for major applications.
Halton said it had appointed four additional staff to deliver a significant improvement in performance statistics.
Hounslow was confident it would not be placed in special measures because a very high percentage of major applications had been determined within 13 weeks over the last two quarters of 2013.
Enfield said they had a plan to improve performance against the statutory time frames, adding that it worked with developers to secure a good planning outcome rather than adhering to strict timescales.
Daventry said it was premature to conclude that the council was at risk of being placed in special measures, because the figures did not include live major applications that were due to be determined within the Government's timeframe.
Cherwell and Fylde councils had not responded to 'Planning Resource' by the time it was published.
Perhaps Fylde wanted to keep it quiet. Certainly we've seen nothing about it from them.
Equally, we would argue, especially given the seriousness of the situation, if counterbalance knows about it, you can bet Fylde's Portfolio Holder for Planning knows about it. In that case, why has he not made a report to Cabinet or the Full
Council to alert them to the possibility? Why has the Cabinet and the Development Management Committee not had a report to explain what's going on and what the implications are or might be regarding slow performance?
Turning now to the situation with appeal decisions which overturn a planning refusal, the Government has said that, in the first instance, it anticipates that no major applications will qualify for submission direct to the Planning Inspectorate
for this reason, because currently no authority has had more than 20% of its major decisions overturned at appeal.
It then qualifies this by saying "It should be noted that this is an estimation: planning appeal decisions are not necessarily made in the same quarter as the original decision. "
We can't help wondering if this 'overturned appeals' threat is also contributing to the reasons why Fylde is failing to prosecute the decisions of its Development Management Committee who refused permission at Wesham and, as now looks likely, they
will do the same at Kirkham.
So where does this leave us?
Firstly, it has to be said that this is an awful piece of legislation.
Putting councils on the 'naughty step' simply confirms the existence of a nanny - in this case a nanny state.
The whole point of local democracy is that we can un-elect councils whose performance we don't like.
It should not be up to the Government or anyone else to usurp the decisions made by local people in local elections.
But equally, Fylde has a duty to come clean with its residents.
If it is failing to tell the whole truth when it blames the inadequacy of the Local Plan and the National Planning Policy Framework - in order to recommend approval of planning applications,
or when it withdraws support at appeals, then it is falling short of the conduct we have a right to expect of it.
If it is being economical with the actualité, and we do not have the proper information on which to base our decisions at an election, then we will not make the right decision.
So in our view, the Government would be better advised to act like a Judge, and inform residents about the performance of their local Council in order let us be the jurors and determine our view of their performance.
But they won't do that, because in reality what we have is the Government's abandonment of its commitment to introduce localism in planning decisions, (where the Local Plan was to reign supreme), and a conflict between what most people in Fylde want with respect to development, and what
the Government wants.
Fylde Council's Development Management Committee is simply caught in the middle of this crossfire.
They might take less 'collateral damage' if they decided which side they are on.
At present we believe Fylde's Development Management Committee is not fit for purpose. It is riven asunder with division about which advice to follow - its own Local Plan, the advice of technical experts, the advice of its planning officers, or the latest edict from Mr Boles
- the last three of which bear no relationship to the wishes of its electorate.
This is a theme to which we expect to return shortly.
Dated: 1 July 2013