The Planning and Compulsory Purchase Bill: Proposed changes to the regional and development plan processes - Part II

Introduction

In the first part of our commentary on the Planning and Compulsory Purchase Bill we considered the proposed changes to the development control system. This article considers the new development plan and regional planning process. The Bill is now in Committee and substantial changes have been tabled. The commentary is based on the published Bill.

Much has been made of the Government’s intention to speed up and rationalise regional planning and development plans. This part of the planning system is subject to the most sweeping changes when compared to the current regime. The main strategy has been to strengthen regional strategy whilst removing the county Structure Plan from the development plan hierarchy. There are also significant changes to how district and borough councils prepare their development plans.

Sustainable Development

A statement on the purpose of planning was much discussed in the Government’s consultation documents. The final version is so obscure some early commentators missed it. Instead of imposing an overriding objective, the duty is that, when preparing RSS or local plan documents, the relevant authority must “exercise their function with a view to contributing to the achievement of sustainable development”. Reports on the sustainability of certain development plan documents are also required.

No guidance as to what is sustainable development is given in the Bill. Lord Rooker, the planning minister, stated the duty means to act so as to achieve “high and stable levels of economic growth and employment, social progress, effective protection of the environment and prudent use of resources”. The minister suggested in his announcement of the Bill’s publication that the duty has been left deliberately vague so as to avoid judicial reviews becoming commonplace.

Regional Planning

Regional planning is currently by Regional Planning Policy Guidance (RPGs) issued by central government. Regional Spatial Strategies (RSS) will replace RPGs. There will eventually be RSS for each region outside London. The London Plan being prepared by the Mayor of London would be RSS for London.

A region is defined by reference to the Regional Development Agencies Act 1998. Existing Regional Planning Guidance will become the RSS where the Secretary of State prescribes.

RSS will set out the Secretary of State’s policies in relation to the development and use of land within the Regions. The policies must be concerned with the use and development of land, but need not be directly related to planning. For example congestion charging policies may also be relevant. A guidance note issued to planning authorities when the Bill was published indicates the RSS should be more focused than RPG and will contain sub-regional sections.

The Secretary of State may recognise a body as the Regional Planning Body (RPB) for a region. He otherwise retains the regional planning function for the relevant area. The Secretary of State may also withdraw recognition and himself exercise the functions of the RPB. Some regional chambers are already involved in promotion of RPG. It is anticipated that they, or the proposed regional assemblies, will take over the role of RPB.

RPBs must keep under review strategies and matters that “may be expected to affect development in the region or any part of the region, and the planning of that development”. They should monitor the implementation of the RSS and consider whether its purposes are being achieved. Advice to other persons must be given if that would help to achieve implementation of the RSS. An annual report on the implementation of the RSS must be produced.

Each RPB may consider whether, either in relation to the whole or any part of their region, it is desirable for a county or unitary council, or a national park authority to ‘assist it’ in carrying out any function that the RPB has. The Government’s letter to planning authorities explaining the Bill’s implications suggests a significant role for counties assisting RPBs on RSS revisions (as well as assisting districts on the preparation of local development documents) despite the end of the structure plan level in the plan hierarchy.

RPB must, when preparing a draft revision of the RSS, have regard to:

• the Secretary of State’s policies and advice;
• the RSS for each adjoining region or the Wales spatial plan – if any part of its region adjoins Wales;
• the resources likely to be available for implementation of the RSS;
• other matters prescribed by the Secretary of State.

On completion the RPB must publish the revised RSS, a sustainability report and any other documents prepared in the RSS process and submit these to the Secretary of State. Any person may make representations on the draft. The Secretary of State may make arrangements for an examination in public (EIP) to be held. No person has a right to be heard at an EIP.

The Secretary of State will be able to direct an RPB to prepare a draft revision of the RSS. He will also be able to revoke an RSS in whole or part.

Comments

The success of RSS prepared by regional bodies will depend on how successful English regional assemblies are both in establishment and practice. RSS might become a positive tool of regional planning but could equally be undemocratic and remote. The sacrifice of the structure plan prepared by County Councils can also be seen as less than desirable in this context, although some will feel that the removal of the structure plan stratum in the hierarchy will have little practical impact. The interaction between the Secretary of State, the RPBs and local planning authorities will no doubt take some time to resolve itself once the new regime becomes operational, as will the degree to which the counties can still find a role to play in the process. It is also to be noted that the Secretary of State intends to retain significant power to control RSS production and content, despite the purported regionalisation of the new regime.

Local Development Frameworks

One of the Government’s principal aims is to revitalise and speed up the development plan process. Local plans have sometimes taken an age to prepare, and more than one in ten local planning authorities (LPA) have yet to publish their plan over a decade after the plan-led system came into being. The Government’s 2001 Green Paper and July 2002 Policy Statement both indicated the local plan system would be replaced by ‘Local Development Frameworks’ to speed up the process. With a little further re-branding, the detail is provided in Part 2 of the Bill. The Government have indicated the phrase Local Development Framework will still appear in Guidance, even though the phrase is not used in the Bill.

The key to this part of the Bill is understanding various phrases used:

local development scheme - the LPA’s scheme specifying local development documents and the areas to which they relate, as well as which documents are to be regarded as development plan documents

local development documents (LDD) - documents specified as such in the local development scheme. These will be as required by the Secretary of State in regulations and must include the LPA’s statement of community involvement. Not all will be part of the development plan – supplementary guidance would also be covered by the definition.

development plan document - a document that is both a LDD and part of the development plan. Regulations will prescribe which LDDs constitute the development plan

development plan - the RSS and development plan documents approved or adopted in relation to that area.

It is to be noted that the RSS becomes part of the development plan for the purposes of Section 54A of the 1990 Act. This considerably strengthens the role of regional policy/strategy in development control decisions.

Local Development Schemes and Statements of Community Involvement

LPAs will now be required to prepare and maintain a local development scheme. The scheme must specify the following:

• LDDs included in the scheme;
• The subject matter and geographical area to which each document is to relate;
• Any documents to be prepared jointly with one or more other local planning authorities;
• Any matter or area in respect of which the LPA have agreed to the constitution of a joint committee;
• The timetable for preparation and revision of the documents;
• Any other matters prescribed by the Secretary of State

A copy of the scheme must be sent to the Secretary of State, and the relevant RPB. The Secretary of State may direct the LPA to make amendments. The LPA may revise the scheme at such time as they consider appropriate and must do so when the Secretary of State directs.

The provisions governing the preparation of schemes also generally apply to the preparation of minerals and waste development schemes. These matters remain the jurisdiction of county councils.

LPAs will have to prepare a statement of community involvement. These will explain how the community will be involved in drawing up both the preparation and revision of local development documents; as well as applications for permission. The statement must be part of the local development scheme and will be subject to the same approval process as other development plan documents.

Local Development Documents

LDDs must be prepared in accordance with the local development scheme. In their preparation, the LPA must have regard to national policies and advice; RSS; the authority’s community strategy (prepared under S4 of Local Government Act 2000) as well as any other community strategy prepared by an authority whose area is included in the LPA’s area; other local development documents; the resources likely to be available for implementing the proposals; and other such matters as the Secretary of State prescribes.

The LPA must also comply with its statement of community involvement. It must also carry out an appraisal of the sustainability of the proposals in each local development plan document and prepare a report of its findings.

LDDs must be in general conformity with the relevant RSS. The LPA may request the opinion of the RPB as to the general conformity of the local development document with the RSS.

Further requirements for development plan documents

Every development plan document must be submitted to the Secretary of State for independent examination. Any person who makes submissions must be given an opportunity to be heard. The Secretary of State may modify a local development document by direction. At any time before adoption, the Secretary of State may make a direction that the document is submitted to him for approval.

In a significant change to the existing process, an LPA may only adopt development plan documents in accordance with what was recommended by the inspector carrying out the examination of the development plan document. Once a development plan document has been submitted for examination the LPA may not unilaterally withdraw it.

Revocation and Revision and Omission

The Secretary of State may revoke any LDD at the request of the LPA. LPAs have the power to revise them at any time but must do so if the Secretary of State so requires.

If the Secretary of State thinks that an LPA is failing or omitting to do anything it is necessary to do in connection with the preparation, revision or adoption of any LDD the Secretary of State must hold an independent examination and may prepare or revise and approve the document. The LPA must reimburse the Secretary of State for any expenditure incurred.

Transitional Provisions

Transitional provisions are dealt with in schedules to the Bill. Whatever constitutes the development plan for an area will retain development plan status for three years from commencement of the new Act, subject to the Secretary of State otherwise directing.

Plans which have not reached first statutory deposit stage would be adapted to assist in the preparation of the RSS or local development documentation.

Proposals for the alteration or replacement of structure plans that have at least reached statutory deposit will continue under the current regime.

Local plans which have reached first statutory deposit will also proceed. Where the LPA is not under a duty to hold an inquiry or hearing, the proposals will continue under current procedures. Where the LPA is under such a duty, the proposals will continue under current procedures but the Inspector’s report will be binding on the LPA and there will be no modifications stage. There will be no revised deposit stage and the entire plan will need to be re-deposited to allow for objections to be made on the basis that there will be no modifications stage. Plans that have reached the revised deposit stage would also need to be re-deposited for this purpose.

Once plans in preparation at commencement have been adopted, the three-year “saved” period would begin. Some plans might not be finally adopted within 3 years and the Bill makes provision for the whole or parts of “saved” plans to continue beyond the three-year period. The life of saved plans will only be extended beyond 3 years by the Secretary of State in exceptional circumstances.

Conclusions on Development Plan Reform

Development plan documentation takes time to evolve. Whilst it may seem that a decade is plenty of time to allow for the bedding-in of the 1990 Act requirements, it must be queried whether the Government would have been better served by making improvements to the existing system. The main problem was a lack of resources available to LPAs to deploy to the substantial task of keeping their plans up to date.

Imposing a new regime, with more separate documents, a significant number of constraints and cross references, and a complex process for transition is surely not the best way of resolving the situation.

There is also a substantial increase in the power of the Secretary of State provided in the Bill. If the Secretary of State uses these powers to actively police the system then the process may be speeded up. If the main difficulty in preparing the documents remains the resources available to LPAs, it is hard to see how such intervention will assist.

Statements of community involvement could become a way of democratising the planning process or simply another foundation on which third parties can build challenges and create delay. Requiring LPAs to establish a timetable for LDD production in its local development scheme is desirable but there is nothing in the Act dealing requiring adherence with the timetable. The practical effect may therefore be limited.

In conclusion, the proposals do not immediately exhibit the flexibility and responsiveness the Government seek. They do however indicate greater powers for central government to intervene in the plan-led process. Further, the sheer number of documents LPAs must now produce may present just as many problems as the current system. It is hard to see what improvements are actually likely to be achieved by the new regime.

For further information please contact Richard Guyatt at richard.guyatt@cms-cmck.com or on +44 (0)20 7367 3545

This article was first published in Planning Law Journal, 17 February 2003

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