The Planning System and Local Communities
Environment and Sustainability Seen Through Community Eyes
The Town and Country Planning Act, which was passed in 1947, established the principles that land use was a matter for whole communities and the public realm. No longer should landowners have the right to build on their land at will. The idea was that some of the worst excesses of change in the environment should be curtailed and to bring this about the powers of local authorities were extended. They now had the right to control land use and the built environment through planning permissions and development plans. The act has been changed and amended over time and, in an attempt to simplify the system, the Government introduced the National Planning Policy Framework in March 2012.
The statutory regulations are clarified or modified by case law which is established through processes such as planning appeals and judicial review. Local input into the system is, in theory, brought into play through the making of Local and Neighbourhood Plans, but the effectiveness of these can also be challenged through appeals and the judicial process. Although the system was supposed to be simplified by the NPPF, in practice it is still difficult to understand and planning remains an expensive and time-consuming process.
The principal sets of rules and regulations that currently govern the planning process are:
• Town and Country Planning Acts
• Planning Guidance – NPPF, PPG
• Case Law
• Local Plans
• Neighbourhood Plans
The planning changes introduced through the NPPF were designed to stimulate house-building and increase the housing supply. There was a perception that Local Authorities and communities were dragging their feet and blocking development and the NPPF was a tool for changing this situation round. In theory, it was also supportive of the Localism Act of 2011. The sting in the tail, as shown below, is that housing numbers almost always take precedence.
• Local Plan in Place?
• Five Year Housing supply in place?
• Shortfall – Liverpool/Sedgefield
• Presumption in favour of sustainable development – “which should be seen as a golden thread running through both plan-making and decision-taking”
In theory, any Local Authority which has a Local Plan and a five-year housing land supply in place should be able to reach its own decisions through applying the policies in the Local Plan. In fact, this doesn’t quite seem to be working as there are plenty of examples where decisions have been made which over-ride this claim. The presumption in favour of sustainable development can still out-weigh the Local Plan. In areas without Local Plans and a five-year supply, it is almost impossible to make local decision-making stick. In areas with historically low delivery of housing there are additional penalties to address the shortfall. The Liverpool method allows the shortfall to be spread over the plan period whilst Sedgefield requires it to be tackled in five years. It weights the scales in favour of developers and leads to a lot of appeals and developer-led planning. In this situation, the issue of whether development is “sustainable” becomes even more important. If the answers to the first two questions posed above is no, then an application to develop is subjected to a sustainability assessment and this is usually when the “presumption in favour” becomes really important.
Sustainability and the NPPF
Given the importance of sustainability in the decision-making process, it is odd that it is not defined in detail or with any real clarity in the NPPF and although the guidance adopts the Brundtland definition (see below), it often seems that much more emphasis is given to economic growth and house-building than to other roles. The process is weighted in favour of positively promoting development at the expense of other environmental factors. As the NPPF points out, these roles are mutually dependent, but the “presumption to build” outbalances the importance of other environmental factors when the various aspects of any planning scheme is considered. In the absence of really clear guidance, people like planning inspectors and planning authorities often tie themselves in complicated verbal knots to justify the development-at-any-price attitude that the NPPF promotes.
So what constitutes sustainability in the NPPF?
- “Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs” (Brundtland)
- Economic role
- Social role
- Environmental role
“These roles should not be undertaken in isolation, because they are mutually dependent”
The difficulties of trying to achieve a fair balance can be seen in the explanations for drawing up an Environmental Impact Assessment where, even in the very limited circumstances defined in schedules 1 and 2, the “environmental impact” should not be “a barrier to growth”. Of course, land use is not really just about housing. It encompasses nearly every activity known to man and has an impact, all day and every day, on our environment. It is a fascinating thought that, politically speaking, saving the environment is so high on the agenda yet in the NPPF it appears to have relatively very little importance indeed.
Nevertheless, the legislation does call for environmental impact assessments in some cases and most planning applications do get some environmental screening or in-put, however cursory. Any application that fits certain criteria is subject to environmental assessment and an Environmental Impact Assessment must be produced.
Environmental Impact Assessment (EIA)
Environmental Impact Assessment Directive (EU) talks about the “the assessment of the effects of certain public and private projects on the environment”
An EIA should not be a barrier to growth and only applies to a small proportion of projects – “those which are likely to have a significant effect on the environment”
The EIA is defined in Town and Country Planning EIA Regulations 2011
• Schedule 1 (assessment required in every case)
• Schedule 2 (assessment depending on environmental impact)
When is an EIA required?
Generally, it is the larger schemes that require Environmental Impact Assessments although small schemes in very sensitive areas or with potential to bring about significant change to the environment may also need to have one. The list below is not comprehensive and it is a good idea to consult the relevant Schedules of the Town and Country Planning EIA Regulations 2011. Some examples of the kind of schemes that would require an Environment Assessment are:
• Major Infrastructure
• Roads, Railways, Airports, Power Stations, Ports, Waterways, Wind Farms
• Large Development Projects
• Oil Refineries, Quarries, Mines, Chemical Manufacture, Nuclear Industry, Groundwater Extraction, Intensive Farming, Urban Development
• Smaller projects likely to have significant environmental effects
• The criteria for these are defined in Schedule 2
Once a scheme has been identified as falling into one of the relevant categories, then there are lots of criteria that can be considered and the list below is not exhaustive.
Screening for Schedule 2
The criteria includes:
• Characteristics of development
• Size, cumulative effect, use of natural resources, waste, pollution & noise, accident risk
• Location of development
• Existing land use, effect on natural resources in area, sensitive area
• Characteristics of the potential impact in relation to these
• Extent of impact, effect on adjoining areas, size of impact, probability of impact, duration, frequency and reversibility of the impact
Once the scope and scale of the proposals has been understood, it is the developer who has to produce the Report. Like any other part of a planning application members of the public are able to see the report and to comment on it. These reports are often very long and technical. Any member of the public who thinks the contents are inaccurate has a right to object. What the wider public thinks of as environmentally damaging is not necessarily the same, however, as what would be considered environmentally damaging in the planning system. The Local Authority can be asked to advise the applicant on the scope of the screening report and must do this within a set time-scale.
Has to be provided by applicant and include:
• Detailed information about the development
• Alternatives and rationale for choices
• Details about environmental aspects likely to be significantly affected
• Mitigation measures
• A non-technical summary
• Indications of difficulties in compiling the information
• LA can be asked to advise on scope of Environmental Statement (5 weeks)
Once in receipt of an Environmental Impact Statement the Local Authority may send this to a consultative body for comments. Some of these bodies are statutory but many are not and the list below is not comprehensive. There are many small local organisations that might also be able to give advice and help to members of the public who are concerned about the implications on the environment of a planning application. Some local pressure groups keep lists of the useful and helpful organisations in their area. Even where areas are very environmentally sensitive the principle of “presumption to build” and the exhortation that the environment “should not be a barrier to growth” lead to under-valuation of the wider environment.
• Natural England, Environment Agency, Marine Management Organisation, other Councils, National Park Authorities
• Local Water Company, Power Providers, Wild-Life Organisations, Archaeological Organisations, Highways Agency, Health Authority
• Other LA departments (education, footpaths, roads, public open space, playgrounds)
• National Trust, English Heritage, CPRE, Civic Voice, RSPB
• Some local organisations