Buying Time. When 8 weeks isn't 8 weeks.

Developers are often accused of tactics to buy time and by doing so maximising competitive advantage, avoid deadlines, delaying development by land banking etc.  Setting aside the obvious point that delay costs money, development projects frequently sit within contractual and statutory timescales and frameworks.  Its our experience that developers rarely purposefully delay viable development.  In fact the reverse is true. 

Planning is often criticised as one source of delay - sometimes with justification, but mostly without.  The practice of "clock stopping" - asking for changes then re-starting afresh with a new start date when its received - have long since been frowned on.  We are often asked what recourse exists when a planning application gets delayed in the DC/DM office.  As far as we can tell there is none, although recent changes to the fee regime require that Local Authorities must refund planning fees if a decision isn't issued 8 weeks or 16 weeks after the initial deadline depending on the type of application involved.  Councils have become pro-active at agreeing extensions of time to avoid that.

We have grown used to Development Management being run production line like and build it into advice to clients. Its standard practice these days that planning application decisions come out just about on the last day or so of the 8week period.  Target hit.  Welsh Government happy. 

The Town and Country (General Development Procedure Order) Wales was amended earlier this year and introduced a whole raft of changes to procedures. One of the most subtle (and sneaky) changes was to provide either a further four weeks after the receipt of an amendment or 12 weeks from the valid date to make a decision (which ever is the later). On face value a really sensible move that allows for some additional consultation on changes to major applications without penalty to the Council - so long as its in the 12 weeks or 8+ + 4 they hit their target.  .  Read the FAQ's Welsh Government issued and it say this:

• Post Submission Amendments
• From the 16 March any applicant who has submitted a major planning application, who wishes to amend their proposal, will be required to pay a fee of £190 when they submit an amendment.
• Upon receipt of all the documents accompanying the amendment and the fee the local planning authority will have a statutory additional 4 week period (if required) in which to consider the new information before making a determination. 

In fact the time extension changes applies, we find, to all applications.  So your domestic porch where the planner, perhaps reasonably, asks for a glazing bar to change after an early review of the drawings.  A tweak to a parking space - easily requested, quickly addressed.  Suddenly however when you ask when your client permission will be through, a further 4 weeks is available to the council before  it needs to be decided.   Amend any planning application here in Wales and the Council now  have 12 weeks to deal with the application-without penalty and still hit WG performance targets.    

The tip, readers, of the iceberg I suspect, unless Welsh Government put a stop to it.  

Positive planning folks.  All in good time.  

  

Housing Land Supply - North Wales.

We've alluded to problems of Housing Land Supply in previous posts.

Welsh Government Policy requires a Council to demonstrate a 5 year supply of housing land  using something called the "residual method".  In simple terms this can be expressed as:-

Number of houses planned in Development Plan minus the number of units already completed and with permission to be built since the plan began, sprinkle a little jiggery pokery for units which may or may not be predicted as being completed within 5 years to give you the "balance to be built".  Divide that by the number of years the plan has left until its end date to give an annual requirement and multiply by 5.  Simples eh?

August is a fascinating time in consultancy whilst those of us not sunning ourselves on the beach await release of the latest Joint Annual Housing Land Supply reports. 

How are things currently looking?.  

*Anglesey: (stopped UDP)..  Cannot demonstrate a supply as no adopted plan.  1022 units available as at Feb 2016.  

Conwy: (adopted LDP).  3.7 years (August 2016).  Annual delivery requirement to meet LDP target has risen from an annual average rate of 420 units to 618.  

Denbighshire: (adopted LDP).   2.02 years (July 2016).  Annual delivery requirement to meet LDP target has risen from 500 units to 1055.

Flintshire. (UDP Expired 2015).  Cannot demonstrate a supply with no adopted plan.  LDP predicted adoption mid 2019.   3076 units predicted available.   

*Gwynedd:  (Adopted UDP).  2.9 years.  (August 2016).  Annual delivery requirement to meet UDP target has risen from 278 to 538.

Wrexham: (UDP Expired).  Cannot demonstrate a  supply with no adopted plan.  LDP predicted mid 2019.  1274 units available as at April 2015.  LPD adopted predicted mid 2018. 

* The joint Anglesey/Gwynedd LDP is moving toward examination in the autumn.  The overall target figure is 7902 (527pa) so it looks as though the LDP will be adopted with an immediate shortage and will be playing catch up straight away as the annual average rate of completions is expected to be 254 and 272 for Anglesey and Gwynedd respectively.  Neither rate has been achieved.

Using a relatively crude measure such as the residual method perhaps magnifies the effects of undersupply (or rather under delivery) during say a period of low build rates or economic downturn.  However its also reasonable that would smooth out over the 15year lifetime of a plan.  However its also the case that no North Wales LPA has witnessed housing completions  anywhere near its annual target in any recent year.  That merely compounds the problem by increasing the residual gap ever more.  Therein lies the challenge.

We may  do some further analysis down the line but the basic conclusions are:

• No North Wales Council has a five year housing supply and so must be open to additional housing proposals which meet the the PPW objectives of delivering sustainable development.
• The annual housing requirement for each authority is increasing year on year and we simply predict the gaps will get bigger unless more houses are actually built.
• The delivery of housing is nowhere near the levels required. 

In a future post we might look to some of the problems and thoughts on solutions.

Development Management Frontloading - The reality of the New World

Yesterday brought the first post 01 Aug phone call about a new major development in Wales.   We've been working flat out to get those we can sorted before the deadline.

By "major" we mean a warehouse buidling extension of some 1200m2 on his 1.5ha site.

Ive this afternoon let the client know pre-application consultation requirements.

Lets run through the supporting info briefly:

1.  Existing and proposed site, elevation and floorplans. (at least 6 drawings). Planning forms

2. Flood Consequences Assessment. site in Zone C1.

3. Known Great Crested Newts in locality. Phase 1 Eco, potentially Phase 2.

4. Design and Access Statement.

5. Planning Statement. 

6. Building will be close to Adjacent trees and boundary hedgerow.  Arboricultural report.

Ive advised him to take advantage of the statutory, pre-application service the Council offers initially ( £600 stat fee).  

He now must also consult in advance of making any planning application these Community and Specialist consultees:

1. Cheshire West Council (site abuts Cheshire Boundary)

2. The Welsh Ministers- The site is 1.5 ha and lies within 5KM of a scheduled ancient monument. 

3. The Community Council.

4. County Councillors X 3.

5.The Highway Authority.

6 National Resources Wales and

7.  4 no adjacent occupiers and 

A site notice is to be displayed for 28 days advising where the documents can be viewed in that period. We've yet to identify a community building (which might be open!!) where the application documents can be displayed publicly.  

Lets assume this fairly modest warehouse extension wont justify  www.modestfactoryextension.co.uk.  So he probably has to provide hard copies of it all, those 8.  I expect public sector consultees will accept emails or CD,  

I'm now going to work some times (and therefore fee indication) on these requirements.      

And then at the end of this, collate a Planning Application Consultation Report to submit alongside the application. 

The silence on the end of the line was deafening.  He only wants to store some additional furniture.  

At this very modest scale of "major" development I'm not yet sure that Welsh Government grasps the "risk" doing all this in advance creates for a business.   Time will tell.  It will also tell if he  commits.

927 Days

It seems like a long time ago that we put pen to paper and presented an application for outline planning permission for 24 houses on a site on the edge of a semi-rural village.  It was.  15 October 2013 in fact.

To say the site had policy difficulties is perhaps an understatement.   It was last used as a formal football pitch - albeit it in a poor condition, on Grade 1/2 Best and Most Versatile Land and lay outside the development boundary of the Village.   The Council plan had time expired but remains a material consideration.  

Council Development Management planners were open-minded to consideration of the application and were balanced in their deliberations and case throughout.  Their Policy colleagues were distinctly more uncomfortable about the principles and perhaps the precedent.   Our cogent arguments about housing supply (especially the need for early phase delivery in an emerging and as yet unadopted Local Plan), sequential approach to development in the village, the delivery and gifting of a Multi-use Games Area facility to the community as part of a masterplanned approach were all instrumental in securing a recommendation to grant planning permission. 

It total, the application has taken 927 days from submission to receipt of a decision notice.  Over 600 of those days has been taken up by the legal issues of the parties involve in drafting, resolving and signing a S106 Obligation in respect of the MUGA.   

All said a challenging application but we are delighted to sign off for the Bank-Holiday weekend with a phone call to the client confirming that his permission is now in hand. 

Pete

The Value of Planning. Adding up the numbers

It was a pleasure for me to Chair RTPI Cymru' s annual spring conference this week where we discussed and debated the "Value of Planning".  

Speakers ranged from Sioned Edwards and Georgia Crawley (Young Planners Cymru) who told us of their inspiration to enter the profession, values and the future for us all (we are in safe hands incidentally) to the President of the RTPI for 2016 Phil Williams, Director of Planning and Place at Belfast City Council where an emerging planning system in place of an imagined "gap"  it is starting to create confidence in the Value of Planning to secure delivery of investment in the City Centre.  Dr Mike Harris captured the audience's attention running through his fascinating research on the Economic Value of Planning.  Sarah Lewis of Arup set out the stark findings of research for the RTPI on impacts of austerity and cuts in Local Government planning services in the North West of England.  Neil Hemington, Chief Planner at the Welsh Government gave us his personal perspective on the value of planning and how in 2016 planners need to lead quickly to ensure we influence Local Wellbeing Plans. 

John Davies MBE ran us through the launch of Wales Best Place where the RTPI is seeking nominations for those places shaped, protected or improved by planners and the planning system. Dave Chetwyn of Urban Vision showed us, with his study of Liverpool City Waterfront (the winner of England's Best Place in 2015), that WalesBestPlace has much to live up to.  Trust us England, it will.

A key conclusion of the day was Planning can be seen as a barrier to economic development whereas it is in fact a facilitator. We just don't shout about it enough. 

As Chair I threw out the  challenge that the we should try to put some numbers on the Economic Value we "generate".  At a simple level say, one Local Authority approves 300 domestic extensions a year at an average cost of perhaps £20000 per extension. 

£6million folks:  It creates jobs for brickies, plasterers, roofers, joiners, for people making and selling supplies, even for architects.  Im not counting in "permitted development" which the planning system allows by default. So shall we double it?  £12million? Just on domestic extensions in one modest local authority.  Per Year. Directly into your local economy.  Put that to your Councillor when next they begin to question the need for planning staff and service funding.

PLPlanning does its bit too.    Scanning through one folder on my Mac for the last 12 months. I put a very rough "guestimate" that this single planning consultant has advised on £54million of development proposals with perhaps another £15-20million in the immediate pipeline.   A very conservative back of fag packet 5 minute guess too.  

I throw the Challenge out there.  Do you value your planning? 

In it to win it? The Development Plan Maps Lottery. What a difference a letter makes.

As RTPICymru chair for 2016, Ive recently been asked to write a blog for the Homes for Wales campaign. That is in gestation and should be available to read soon. Great for those of you who find sleeping difficult.  I'll keep you posted. In the interim have a look at Homesfor.wales and  give the campaign your support as RTPICymru does. 

Housing, as usual, was a hot topic at planning committee yesterday. When isn't it? In one case Councillors reaffirmed, after lengthy debate and far from unanimously, a previous resolution to refuse planning permission for fewer than 100 houses of the 6500 or so the Development Plan requires to be built.  

The Plan (as with many in Wales) is currently failing on housing.  Harsh words, but the truth. The Strategic Planning Manager accepted as much when he slipped in an announcement about imminent partial review.  

That the current Plan was only adopted 2&1/2 years ago is significant.  The Council has around 4.1 years of housing land supply (compared to the minimum 5 years) PPW and TAN1 expects. Watch this space. It will get worse.  Lets blame the residual method. Council's are, so why not the rest of us.  

The most heinous failing of the scheme however was that the land in question happens to be on the "wrong" side of a line. The development boundary line. Objectors (appreciably) and councillors saw the line as something fixed, definitive, a degree of permanence.  They overlooked, I'm sure, that past incarnations of the proposals maps for the locality inform you that, not too long ago, the thick black line was  drawn somewhere different to its current location and it will have been at some point re-drawn to allocate land to build their housing estate.  The Councillors were equally vexed that less than 5 years ago they went through a tortuous process deciding where these lines should be  - and the strategies, allocations  (and non allocations) that consequently flow to or from them.    

Planners have long loved lines on maps. Lines on maps mean important things to us.  They are also defensible lines which politicians and  the public latch onto.  They mean you can put something one side of it but not the other.   

Thick black lines on maps help give black and white answers to questions such as "can we get permission to build the houses we want to build inside the line?" Usually "Yes" is the answer.  Revise that question to "Can we build the houses we need inside the line" and the evidence points to a different answer.   

I'm increasingly reaching a view that some of these lines are counter productive - especially when it comes to delivering the houses we need.   Yet every time I mention it policy planners look aghast. 

The debate yesterday made me cast my mind back to this article.   The opening line asks the question "What is a map?".  Peter Barber, head of Maps at the British Library went on to say.  "A Map is a lie"  Read the article for yourself.  Its fascinating.

Maybe then we should look to reduce the reliance on lines (or is that lies) on maps to help society address the housing problem. What a difference a letter can make.  Imagine then how that same application might have been judged where the Development Plan had no such thick black lines. The line on the map gives an immediate negative association - that the settlement ends with the lie and nothing shall be built beyond it.  

Imagine then that application considered just on all its other merits - its organic (and market) response to accepted housing need and settlement growth, objectively assessed landscape, physical and social infrastructure impacts and requirements, its sustainability, heritage and biodiversity implications.  The outcome might very well have been different.

Imagine a plan without development boundary lines, where choice, competition and encouragement to  new housing in sustainable locations is genuinely proposed - rather than growth restricted within artificial map boundaries.  A plan which gives a different kind of certainty through genuine options; facilitates imaginative solutions about where and how to build houses (and schools, shops and workplaces); avoids an approach which by default encourages objection because of  rigid structure and restriction.  A plan where location and scale of housing is managed and monitored against that broader yet flexible strategy, steered to locations where growth can be met now and in the future, with the infrastructure to serve it.  That can still and should be a Plan that protects the quality of places in Wales that we all love. A Plan that fosters investment in and enhancement of them rather than perceiving development as automatically harming them.

A Plan doesn't have to have lines on maps to be a Plan to achieve this. The plan could be something different.  Perhaps lines on maps are part of the problem and the solution.

Perhaps with such a Plan you'd need a stick or two to nudge things along. Short-time limited permissions and phasing could encourage them to be completed. Or a Local Development Order...  

I don't believe any of that is too difficult to achieve but it certainly requires someone to imagine it and to be brave and confident to lead it.
   

Imagine a plan that said deal with all these and you CAN build the houses you need there.  Maybe call the process something like Development Management.  Yes I like that name, it has a great ring to it. 

Houses in Multiple Occupation - Use Class and PD changes (Wales)

Two new items of subordinate legislation have been laid before the Assembly and come into force on 25 February.

Changes to the Use Classes Order introduce a new Use Class for HMO's (Class C4) comprising "use of a dwellinghouse by not more than six residents as a household in multiple occupation" (applying the S254 Housing Act 2004 definition).   Memory serves me that this was done in England in 2010. 

Larger (6+resident) HMOs are sui generis.

It also refines how Class C3 in part interprets the term "single household" .

The Permitted Development Order changes grants permission for a change of use from the new Class C4 to class C3.

The Minister's drive to implement the measures set out in the Positive Planning Implementation Plan in December 2015 remains on the rails.   

Frontloading: Pre-Application Consultation

As we hinted at in a pre-Christmas tweet, Welsh Government has confirmed its intent to introduce pre-application consultation (frontloading) following publication of its Positive Planning Implementation Plan in late December last year.

An announcement likely to impact on development and contract timeframes, processes and approach to Major development proposals will be the introduction of pre-application consultation with the community (including residents, town/community councils and councillors) which we now anticipate will come into force in Wales in legislation at some point in March 2016 through an amendment to the General Development Procedure Order.   Alongside that will be a statutory duty to provide pre-application services.  

We remain hopeful of a corresponding duty on the LPA and other specified consultees to provide a timely and substantive response thus serving the purpose of scoping and resolving major issues early before an application is made. 

The precise details remain sketchy but we assume from the previous consultation that it will affect all major developments as defined in the Procedure Order (i.e. 1/ha, 1000m2+/10 dwellings/0.5ha+ etc). 

Amongst other things, expect to have to consult with the local community (council, councillors, residents and specific persons-  most likely the normal planning application consultees) in advance of submitting a major planning application and to prepare a consultation report to accompany the application setting out what has been undertaken. 

I cant be more specific on the absolute dates and requirements until WG publish some guidance (details remain sketchy, but we are advised ought to become clearer  within a couple of weeks according to WG). 

However, it's wise to  start to factor in  requirements (and lead in time periods) in order to profit from the process.     

Dont hesitate to contact if you want more information. 

Appeal Success Commutted Sums removed

In 2014, a Council sold surplus offices to a private individual as suitable for housing. Subsequently it granted planning permission to convert the building into 6 apartments as well as an alternative scheme for a nursing home. Amongst other things, the Council imposed 2 conditions on the apartment permission which sought to secure arrangements (in effect commuted sums) for public open space and affordable housing.  

Applying adopted supplementary guidance to those conditions it emerged that the commuted sums would be circa £55000. (on a development six small apartments in  low value North Wales coastal town!!)

After seeking our initial advice the owner re-applied to the Council to remove both conditions on the grounds that the development for apartments would be unviable with that additional cost burden. Despite providing a robust viability assessment with that S73 application and that assessment being accepted as correct by the Councils own advisor (nor disputed by the planners), the planning department refused to remove the conditions not least concluding it wasn't a matter for the Council whether the development made a profit.  

Following a review of the Case Officer report we recommended and prepared an appeal against the refusal on a number of grounds including viability, the need/justification for and reasonableness of the two conditions. 

We are delighted to confirm that the appeal has been allowed in all respects and both conditions have been removed, 

In respect of the Open Space matter the Inspector stated "the size of the contribution has not adequately demonstrated it is proportionate to the scale of the development"  having earlier found that the Council had provided little evidence to demonstrate when a contribution would be required based on the scale of development, how that commuted sum is calculated, and how the development would materially affect existing public open space provision. 

The Inspector found that the "the appellant’s submitted viability appraisal has not been disputed by the Council. The scheme is clearly unviable when commuted sum payments related to affordable housing and public open space are factored in" not least noting the low value of two of the units, whilst giving considerable weight to national advice on the critical viability of small sites, the "acute" shortfall of housing land in the County and that the Council itself had sold the site at a genuine price.   

The appeal is another salutary reminder that is it not simply sufficient to impose planning conditions to secure compliance (as was stated in this case) with a development plan policy or because  i "easy"to tack something onto a permission to satisfy a consultee or because "that's what we always do".  Each condition should be designed to tackle specific problems rather than impose unjustifiable controls and should therefore rightly be subject of scrutiny and justification. Where imposed, a condition must meet each of the six tests National guidance sets out, namely that it is:

• i. necessary; 
• ii. relevant to planning; 
• iii. relevant to the development to be permitted; 
• iv. enforceable; 
• v. precise; and 
• vi. reasonable in all other respects.     

This is our second case within this Local Authority recently where we have argued successfully that conditions of this type should not be imposed, particularly where there is no justification for blanket Open Space payments.  No doubt another will cross our path in the non-too distant future.