LOCAL DEVELOPMENT PLANS LESSONS FROM ACROSS THE BORDER

1. LOCAL DEVELOPMENT PLANSLESSONS FROM ACROSS THE BORDER Robin Green

2. THE NEW REGIME Part 6 of the Planning and Compulsory Purchase Act 2004 requires local planning authorities to prepare local development plans. A local development plan • must set out: (a) the authority’s objectives in relation to the development and use of land in its area and (b) the general policies for the implementation of those objectives

3. THE NEW REGIME 2 • must be prepared “having regard to” (a) current national policies (Planning Policy Wales; Minerals Planning Policy Wales; TANs; MTANs; Circulars; Circular letters; MIPPS; MIMPPS) (b) the Wales Spatial Plan (now the 2008 Update) (c) the Regional Spatial Strategy for any region which adjoins the area of the authority (d) any relevant community strategy (e) the resources likely to be available for implementing the plan (f) other prescribed matters (local transport plan policies affecting the authority’s area; the objectives of preventing, and limiting the consequences of, major accidents; the long terms need to maintain appropriate distances between certain sensitive uses; the Waste Strategy for Wales; regional waste plan policies affecting the authority’s area; local housing strategy policies affecting the authority’s area)

4. THE NEW REGIME 3 • (In Associated British Ports v Hampshire County Council & Others [2009] JPL 430 held (following earlier authority) that in the context of plan preparation the obligation to “have regard to” meant not to depart from without good reason) • must be prepared with the objective of contributing to the achievement of sustainable development (andfor this purpose must have particular regard to the desirability of achieving good design) • must be subject to a sustainability appraisal (which should include an environmental assessment in accordance with the SEA Regulations 2004)

5. THE NEW REGIME 4 • must be prepared in accordance with a delivery agreement comprising the authority’s community involvement scheme and the timetable for the preparation and adoption of the LDP • must be submitted to the Assembly for independent examination, but only when the requirements of the Town and Country Planning (Local Development Plan) (Wales) Regulations 2005 have been complied with and the authority thinks the plan is ready for independent examination • must adopt the LDP in accordance with the recommendations of the person appointed to carry out the independent examination, within 8 weeks of receipt of the recommendations (unless otherwise agreed in writing by the Assembly), or may withdraw it if so recommended

6. INDEPENDENT EXAMINATION The purpose of the independent examination is to determine whether an LDP • satisfies the relevant requirements of the 2004 Act and the 2005 Regulations • is sound The 2004 Act does not prescribe what is meant by “sound”, nor do the 2005 Regulations assist. The Planning Inspectorate has suggested that its ordinary meaning of ‘showing good judgment’ and ‘able to be trusted’ is apt, within the context of fulfilling the expectations of legislation.

7. INDEPENDENT EXAMINATION 2 Local Development Plans Wales (WAG 2005) sets out 10 criteria for assessing soundness (para 4.35), but six of these criteria duplicate statutory requirements. The four remaining criteria are: (1) The plan sets out a coherent strategy from which its policies and allocations logically flow and, where cross boundary issues are relevant, it is compatible with the development plans prepared by neighbouring authorities. (2) The strategy, policies and allocations are realistic and appropriate having considered the relevant alternatives and are founded on a robust evidence base. (3) There are clear mechanisms for implementation and monitoring. (4) It is reasonably flexible to enable it to deal with changing circumstances.

8. INDEPENDENT EXAMINATION 2 Presumption of soundness: LDP Wales, Local Development Plan Manual (WAG 2006) and A Guide to the Examination of Local Development Plans (PINS Wales) all say: “The presumption will be that the LDP is sound unless it is shown to be otherwise as a result of evidence considered throughout the examination.” But in Blyth Valley BC v Persimmon Homes (North East) Ltd and others [2009] JPL 335, CA (similar policy statement in PPS12 in England) conceded that role of Inspector at independent examination is at least in part inquisitorial; inspector could reject a policy without there being evidence from objectors that it was unsound. Held: no presumption of soundness.

9. INDEPENDENT EXAMINATION 3 Blyth Valley also pertinent where local planning authority faced with change in national policy shortly before independent examination. In that case • New national housing policy issued 2 ½ months before an independent examination into a core strategy • New policy altered definition of affordable housing and required an economic viability assessment • LPA submitted a “Compliance Statement” at the independent examination to the effect that core strategy housing policy complied with new national policy

10. INDEPENDENT EXAMINATION 4 • Inspector held core strategy sound • Court quashed housing policy as unsupported by economic viability study and based on earlier definition of affordable housing • Suggested (para 32) that LPA might instead have invited Inspector to modify housing policy to make clear not compliant with new national policy and merely a holding policy.

11. INDEPENDENT EXAMINATION 5 Two other cases underline the importance of considering reasonable alternatives to policy proposals: • Capel Parish Council v Surrey County Council [2009] EWHC 350 (Admin): Challenge to planning permissions for an incinerator and to waste development plan policies on which planning permissions based. Held: in recommending adoption of waste policies inspectors had applied unlawful presumption of soundness and had failed to consider properly the LPA’s selection process. Policies quashed. • City & District Council of St Albans v SSCLG [2009] EWHC 1280 (Admin): Regional policies for significant housebuilding around three towns in the Green Belt. Although need to accommodate economic pressures accepted, the environmental report produced for the purposes of the SEA Regulations 2004 did not consider alternatives to the proposed policies and it was not inevitable that development must occur around the three towns. Policies quashed.

12. NEWS FROM THE FRONT • PINS Wales has approximately 15 ½ (?) full time employed inspectors. Appeal work alone will require some 14 full time inspectors in 2009-10. Up to 7 LDP independent examinations could start in 2009-10, with a further 11 in 2010-11. “Inspector resources in Wales, allowing for the fall in appeals, will therefore not be sufficient to cover all anticipated LDP examinations”! (PINS Wales Business Plan) • Guidance on LDP examinations to be produced in 2009-10 • PINS Newsletter Issue 13 – Evidence Base Good Practice