Q & A 4.2/10
To what extent does a White Paper, such as "Our Countryside The Future" issued in November last year, become a material consideration in the making of a planning decision, assuming that the contents were relevant?
Any indication of future ministerial policy is capable of becoming a material consideration, but the weight to be given to it varies according to the degree of likelihood that it will be carried forward into law or firm departmental guidance. I would have thought that it unlikely that material contained in a White Paper, being essentially a discussion of Governmental policy options, would be considered to contribute much to decision making on a contemporary planning application.
PPG1 Annex B indicates that statements of policy may be found in White Papers and PPGs. She feels that from this it may be deduced that White Papers are of equal weight and status to PPGs and should be treated with the appropriate respect in consideration of planning applications.
Although a Green Paper may be accorded little weight it is his understanding that a White Paper which sets out a Government's intentions for legislation or revised ministerial advice, should be accorded due weight. He cites the Rural White Paper wherein it was stated in respect of diversification proposals that "the Government is revising PPG13 to clarify the framework for considering the transport implications of rural development proposals".
Support for my view may be drawn from an inspector's decision letter relating to a 1998 case in Lewisham. Here a house was proposed which would create a substandard parking situation. The appellant quoted the July 1998 White Paper "A New Deal for Transport: Better for Everyone" in support of the case. Also quoted was a UDP review paper on the subject. An inspector felt that both these publications only contained position statements and policy options for future consideration. He felt that he could not consider them as respectively reviewing the current advice in PPG13 or as modifying the provisions of the very recently adopted UDP. He regarded the White Paper and the UDP review as being of more limited relevance or application.
Do any other readers have experience of a White Paper being accepted or rejected as a material consideration?
I have a client who is considering making an application for a substantial leisure complex just within an Area of Outstanding Natural Beauty (AONB) designation, but should I be telling him not to waste his time and money?
The number of call-in or appeal cases involving large scale new build developments within an AONB is very small indeed and hardly any have been allowed. This is indicative of the very tight controls which are exercised in AONBs as set out in PPG7, and the recent extension of National Park criteria thereto only serves to tighten the screw further. Clearly very special circumstances are needed to justify development within an AONB. The well known Center Parc case at Longleat in Wiltshire is one example where ten years ago economic need, enabling gain and a discreet location in woodland combined to tip the balance in favour of a permission after call-in. Another situation where permission may possibly be contemplated would be where landscape quality has already been severely compromised but this would be a very exceptional circumstance. My advice, without knowing the planning context and history of your client's land, is that the attainment of planning permission is extremely unlikely.
My client wishes to develop a piece of land which is shown in the adopted local plan at a scale of 1:10,000, to be within an area of outstanding natural beauty (AONB). However, the Countryside Commission's definitive map, at the smaller scale of 1 inch to 1 mile, shows the site lies just outside of the AONB. Nevertheless the LPA still maintains its objection to the proposed development. Which designation is correct?
Powers enabling the Countryside Agency to designate AsONB in England are now in the Countryside and Rights of Way Act 2000 section 82. Any designation has to be confirmed by the Secretary of State, but there is no power given to local planning authorities to unilaterally vary boundaries. Therefore it would seem that it is the definitive map that should hold sway, and your site is not strictly within an AONB. However, there is always room for interpretation at a scale as small as one inch to the mile. I wonder whether there are any identifiable features on the ground that it may be reasonable to consider were followed by the original draughtsperson of the definitive map.
My authority is rapidly approaching the situation where it will have met the strategic housing target based on county structure plan figures, with another 7-8 years of the plan period remaining. This is due in the main to a very large and unexpected windfall site, which has already been redeveloped for housing with substantial community benefits, and to other PPG3 sites coming forward. Are you aware of any cases where residential applications of any size have been successfully resisted on the basis of the overprovision of housing, even though site specific criteria relating to the application were acceptable?
A good example of this type of scenario occurred in an appeal case from North Dorset reported in Casebook (Planning November 16 2001 p17). Here a 2 ha site was proposed for housing in a location which an inspector noted was close to a town centre and in a very sustainable location. However, despite indications that the site was superior to other allocated land the appeal was dismissed on the basis that development would exacerbate oversupply in the town. The inspector also rejected objections to the development of the land on the basis that it had a function as open space.
A housing proposal is being considered by a local planning authority. Pre-submission negotiations took place and amendments in line with officer advice were made. The application was submitted and informal advice from officers supported the scheme. Shortly before the committee date, the planning authority considered undertaking a review of the relevant local plan policy because it was considered to be contrary to PPG3. It subsequently determined that the application could not be considered until after the policy had been reviewed. I contend that where a local plan policy is felt to be contrary to later government advice, that policy should be set aside and the application determined on the basis of the government advice. In the case in point the application accorded with local plan policy and PPG3. Could a successful appeal against non-determination be made with the prospect of an award of costs?
A great many authorities are faced with the difficulty that their published local plan policies on housing do not tie up with PPG3 in many respects. As a general principle later government advice will prevail in situations where there is conflict, but in the case you quote where there is apparent conformity it seems unreasonable to withhold permission on the basis of prematurity to a review. In these circumstances there seems little doubt that if the matter went to appeal on this issue an award of costs for the appellant would be forthcoming. Having said that, most of the housing cases that currently go to appeal on the issue of prematurity involve the lack of a current housing capacity study to determine which particular sites should come forward for development in the light of PPG3 criteria. In these circumstances the inspectorate are normally prepared to support a local authority view that permission should be refused in the interim. But much depends on an assessment of whether there would be significant prejudice to future housing policy by the grant of permission before any study is carried out and approved.
I have a query about the conversion of non-residential buildings to one or more dwellings where the structure plan housing allocation has already been exceeded. I understand that appeals have been dismissed regarding the building of new single dwellings when this is the case, but that conversion appeals have still been upheld.
Individual conversion schemes do not often attract objection that housing targets would be exceeded, if a limited number of units is involved. Such a development would be on all fours with the thrust of PPG3 policy and due to the limited number of conversion opportunities in any given area no significant precedent would be created. However, I am aware of at least one appeal case where a barn conversion to one unit was rejected at appeal because the number of dwellings in a rural area would be increased where the rate was already above the plan figure.
An applicant was informed in writing that land did not fall within a green belt area and that given surrounding residential uses the principle of such development may be acceptable. The site is shown on the proposals map in a UDP adopted in 1998, and there is nothing in the text to contradict this. On the basis of this advice my client sold his house, bought the land and submitted an application. Some six months later he was told that the proposals map was in error. The land was shown in the green belt in the deposit draft UDP and there had been no modifications. Therefore the true status of the land was green belt and the application for a house would be refused accordingly unless there were very special circumstances. My view is that the public must be able to check on the face of the development plan and not have to check for errors. My understanding is that the content of deposit draft plans, inspectors recommendations and so on, are not material considerations once a plan has been adopted. Do you know of any precedents for such a situation?
My feeling is that if your client’s site was not allocated as green belt in the proposals map of the approved UDP then the LPA cannot now apply green belt policies thereto, error or not. Quite a similar case occurred in Wakefield in 1998 where a bungalow was proposed on land previously included in a green belt, but which was excluded in the current UDP. The council argued that this omission from the green belt was a cartographical error, but an appeal inspector considered that although some of the proposals shown in the map may not have been what the council intended, this did not invalidate them.
If the proposals map was in error throughout the deposit stage and was not corrected by modifications, then the error will be a valid part of the plan. However, in the case in point, the error was not in the deposit plan and was not put in as a modification. Therefore what the council actually adopted was the deposit plan, and although it produced a document called the "adopted" plan, surely this was not valid in respect of the green belt land?
With increasing frequency I am coming across policies in local plans which label certain areas of early twentieth century suburban housing in various ways such as "areas of high townscape merit" or "areas of special housing character". Polices which typically apply in such areas seek to prevent unsympathetic extensions and alterations and any demolition. However, such tracts of housing are not normally designated as conservation areas and the full range of permitted development rights operate within them. How then can these policies have any practical effect in preventing changes to the integrity of such areas and how do they fare at appeal?
You are quite right to point out that policies of this type are not assisted by the practicalities of development control. Without a blanket Article 4 Direction permitted development rights for a large range of alterations and extensions to dwellinghouses are universally available, while complete demolition is possible at any time unless Part 31 rights are also withdrawn. Such Directions may be difficult for local planning authorities to justify except in the circumstances of a designated conservation area. However, despite these difficulties the existence of adopted policies designed to secure the character of coherent housing areas is an important material consideration and inspectors at appeal are required to give them appropriate weight in the balance of their decision making. On this basis the existence of such policies can make a difference when the planning system offers the chance of control. I would be interested to hear from local authorities that feel housing character protection policies of this type have been useful.
The High Court decision which you reported (Planning July 11 p18) relating to three houses at Richmondshire, Yorkshire, gives cause for concern. The court overturned an appeal decision on the grounds that the inspector’s finding of lack of harm was not relevant in the case of a clear conflict with development plan policy. But sec.54A allows the decision maker to take account of other material considerations. In finding that there was a lack of harm the inspector was clearly saying that a material consideration outweighed the policy conflict. If the lack of harm was "material" it was surely not within the power of the court to find that consideration irrelevant – unless the court was saying that lack of harm can never be relevant. If allowed to stand this judgment could seriously undermine one of the key principles behind sec. 54A being the preservation of balance in decisions rather than merely a slavish application of pre-determined policies.
On examination of the transcript of this case it is stated that this was a written representations appeal where the issue of the interpretation of policy was not the subject of submissions from the parties. The judge criticised the inspector for considering only the policy relating to open space, and concluding that the absence of harm from lack of compliance with that policy was outweighing. He felt that the inspector had got into a muddle on this issue and should have gone through the whole exercise of finding other countervailing material considerations. Therefore I do not think that this carefully argued judgment is the radical departure from sec. 54A that it might appear, but I have sent you a copy of the transcript to enable you to make your own assessment.
My Council is preparing supplementary planning guidance to secure development contributions for open space consistently and fairly. In line with current local plan policy, we are proposing to set a standard rate per dwelling which will then be used to implement a 10 year rolling programme of improvements and enhancement to open spaces across the Borough. A range of improvements would be identified which could be shown to benefit housing developments in any part of the municipality. On site provision would be sought only in a minority of cases when a development is large enough to justify it, or where there is already an identified shortfall. Do you have any comments on this approach, or know of any appeal decisions which might elaborate on cash payments going to a "central pot" for distribution in this way?
No payments of money may be required by planning condition. Therefore the only planning mechanism for such contributions is a legal obligation under sec. 106 of the 1990 Act. However Circular 1/97 advises that obligations should only be sought when they are directly and fairly related in scale and kind to the proposed development. Specific guidance is given that development plan policies are likely to be unacceptable if they require blanket contributions to a central fund. Needless to say this statement of ministerial policy is a major impediment to the thrust of your council’s proposals.
At appeal financial contributions from single unit housing schemes upwards have been accepted which go towards a fund for the provision or improvement of open space in a locality where it can be demonstrated that the facilities which could be provided from that fund would be of practical use in satisfying the needs generated by future occupiers.
Do any readers have experience of this issue which will assist the enquirer further?
My authority is about to go on deposit with its Local Plan Review. What advice should we give our development control colleagues on the weight they should attach to the emerging policies, as opposed to the policies of the adopted Local Plan? We are mindful of the advice in PPG1 but is there any further relevant guidance or case law on this matter?
PPG1 General Policy and Principles (1997) is the primary source of advice on this matter. As you know, this says that the weight attached to such policies depends upon the stage of plan preparation or review, increasing as successive stages are reached. For example, where a plan has been placed on deposit but no objections have been lodged to relevant policies, then considerable weight may be attached to those policies. However, your authority’s emerging plan has yet to reach that stage and thus it would be premature to afford it ‘considerable’ weight. Nevertheless, draft policies are capable of being a material planning consideration, although planning applications should continue to be considered in the light of current policies whenever possible. Whether emerging policies will outweigh those in an adopted local plan will depend largely on the age and relevance of the latter and whether there has been any material change in circumstances since their adoption, such as some change in Government policy. Each policy should therefore be assessed accordingly and this is confirmed generally by case law and relevant appeal decisions. The topic is covered in 4.21 of the Development Control Practice manual.
In a recent refusal of outline permission for housing within a village development boundary, one reason was that it would be out of keeping with a proposed conservation area. However, the latter has not yet been designated and is not shown on the Proposals Map of the emerging Local Plan, nor is there any relevant Supplementary Planning Guidance. It has been my view that a reason for refusal cannot properly relate to something that does not exist, in this case a conservation area. Is it lawful for a reason for refusal to refer to a matter proposed for the future but not in existence at the time the application was considered?
Under the 1990 Act, planning authorities have the discretionary duty to designate conservation areas but must, in accordance with Sec 69 of the Planning (Listed Buildings & Conservation Areas) Act 1990, demonstrate that they have properly considered these to be of special architectural or historic importance, the character of which it is desirable to preserve or enhance. There is no requirement to use the development plan process for such a purpose, although this is very often preferred as a way of consulting on proposed designations and formulating related policies.
The 1990 Act does not define what constitutes a material consideration when determining an application and neither it nor PPG1 provides much guidance on the matter. Whether a future proposal can be material is for the courts to decide but I can find no specific case law. Generally, however, it has been held that any consideration which relates to the use and development of land is capable of being a planning consideration, depending on circumstances.
In my view, there would need to clear evidence that the authority intends to designate the conservation area within the foreseeable future for this to carry much weight, and the existence or otherwise of a character assessment justifying such action would be an important factor in any appeal. A 1983 case from Staffordshire may be of interest. Here, it was held that it would be premature to grant permission for a proposed filling station which fell within an extension to an existing conservation area proposed in a local plan to be considered as part of emerging Supplementary Planning Guidance, pending final agreement on its boundaries.
Is there a definition of the expression "have regard to" for the purposes of planning control?
I can find no definition of this phrase which appears regularly in planning law and related guidance. Sec 70 of the 1990 Act requires that in dealing with a planning application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations. Within the context of the former, during the property boom of the 1980s this general duty, carried forward from previous legislation, was interpreted quite flexibly with the courts ruling that the requirement to "have regard" did not mean that the decision-maker had to adhere slavishly to the development plan.
However, sec 54A, inserted by the Planning and Compensation Act 1991, to all intents and purposes seeks to define the term by making it clear that the development plan is pre-eminent in the decision making process. But as far as other material considerations are concerned, the duty only extends to ensuring that these have been properly taken into account. That does not mean that such considerations will necessarily dominate as the weight to be given to them is a matter for the decision maker.
Unlike development plan policies, I understand that there will be no provisions in the new Planning Act to save supplementary guidance (SPG) and I fear that this will be devalued by Inspectors on appeal. Once the new act is in force, what status should be given to SPG in the decision-making process?
Transitional arrangements provided in the Planning and Compulsory Purchase Bill and explained in related guidance issued by the ODPM deal only with development plan policies and I can find no reference in these to SPG. The Government proposes that, with the exception of some very outdated street authorisation maps, whatever constitutes the development plan in an area will retain development plan status and be saved for three years from commencement of the new Act. This saved period will also apply to draft plans, once adopted.
Sec 2.4 of Draft Planning Policy Statement 12: Local Development Frameworks, published in October 2003, refers to supplementary planning documents (SPDs) and advises that while these may be included in the local development framework for the area they will not be subject to independent examination and will not form part of the statutory development plan. However, they should be subjected to rigorous procedures of community involvement. Such SPDs may cover a range of issues, both thematic and site specific, which provide further detail of policies and proposals in a development plan document and may take the form of design guides, area development briefs, or issue-based guidance. Exactly what weight should be given under the new regime to existing SPG is not clear, but in my view they must remain a material consideration.
Are you able to provide a definition of "white land"?
Depending on the context, the term has two quite different meanings. The only reference in legislation and guidance that I can find is at paragraph 2.13 of PPG2, which explains that safeguarded land in a green belt is sometimes known as "white land". This comprises land between the urban area and the green belt that may be required to meet longer-term development needs. However, the glossary of planning terms on the website of the Government Office for the North East defines white land as a "general expression used to mean land and buildings without any specific proposal for allocation in a development plan where it is intended that for the most part existing uses shall remain undisturbed and unaltered". While I cannot trace its provenance, this definition accords with the widely accepted use of the term, which outside green belts is now mainly restricted to old-style development plans.
My authority has just finished its preferred options consultation on several development plan documents. To add to the confusion, we have invented "pink land". On our proposals maps we show existing built-up areas without any specific proposals as white and safeguarded land as pink, which we chose because we had run out of other colours.
The term comes from the pre-1968 planning system of town and county maps where permitted land uses were shown with a "planning ink". Land not designated for development was left blank and commonly referred to as "white land". With the advent of the presumption in favour of development, local authorities had to actively designate areas in their local plans that they wished to protect from development until the final land use was determined, in particular areas reserved for long-term town expansion. These designations were known by a variety of formal terms, but the informal use of white land stuck. The concept may well have a future. Under the reformed planning system, local authorities are required to "maintain contiguity of proposals maps" even though a core strategy may propose expansion but the allocations document defining its precise extent has not yet been produced. Draft PPS3 makes it more difficult to refuse multiple speculative proposals for the same amount of development yet to be precisely allocated on the grounds of prematurity. In one case that I am dealing with, a barrister has advised the inclusion of a white land policy in a long-term growth boundary, ruling out development until the phasing and definition of development sites is determined. This may be a common problem in growth areas and I would be keen to hear of examples.
My firm promotes housing sites through local development frameworks (LDFs). The estimated time frame for the adoption of at least two emerging development plan documents we are involved in is 2009. If we are unsuccessful in securing an allocation, how long can we expect to wait before another opportunity arises? Under the previous regime this would be every five years, but now a plan may cover a period up to 2026. If annual monitoring indicates that new housing is being delivered satisfactorily, does that mean that site-specific allocations documents will not be reviewed until 2026 approaches? I can find no definitive guidance.
The Government's guide to creating LDFs explains that they should be "continually reviewed and revised". The main mechanism for doing this is the annual monitoring report. Among other things, the report must consider a range of indicators that could highlight the need for a complete or partial review of the core strategy, such as where housing completion targets are being missed, and the implications for other development documents. Changes to national policy and the regional spatial strategy will also have a bearing on LDFs. The conclusions of the annual monitoring report will inform the authority's local development scheme. This will explain which parts of the framework are to be revised and when. The new system is therefore designed to be more flexible. Even in the unlikely event that annual monitoring reports show that housing targets are being sustained throughout the lifetime of a development plan document, it seems logical to assume that site-specific allocations would need to be reviewed around three years before the end of the plan period.
It is proposed to demolish two non-listed buildings within a conservation area, and redevelop with a sympathetically designed building. As part of the assessment of the economic viability of refurbishing the existing buildings under paragraph 3.19(i) of PPG15, the client’s valuer has demonstrated with comparables that the value of the site and existing buildings are many times greater than used by the planning authority’s advisor. The costs of structural repairs and refurbishment are agreed, but the base value used makes a material difference between a positive and a negative financial return. Should a planning department be able to disregard sound evidence of open market values in applying an economic viability test? BP
Paragraph 3.19(i) of PPG15 states that, when considering whether to permit demolition, local authorities should consider the condition of the building, the cost of repairing and maintaining it in relation to its importance and to the value derived from its continued use.
There are a variety of development control situations where economic viability may be important to outcome, and it is not unknown for parties to come up with divergent figures. If a local authority has based its calculations on sound professional advice it is doing nothing wrong to found its decision thereon, even in the face of contrary evidence provided by an applicant. The matter may then need to be resolved by an inspector at appeal. If it is decided that the local authority has acted unreasonably by relying on poor or arbitrarily derived evidence, it is possible that an award of costs could be made against it. GH
My understanding of the Local Development Framework system is that LDF documents carry little weight until the planning inspector’s report has been published. Can you confirm that this is correct? I also understand that Planning Inspectorate advice is that the evidence based documents for LDFs are relevant material considerations to be taken into account when assessing planning applications. Can you direct me to where I may find a record of this advice? FW.
Government advice has been that policies contained in emerging plans are material considerations to be taken into account in the determination of a planning applications, but that the amount of weight to be given will increase the further along the procedural pipeline the plan containing them has progressed, and thus the likelier an outcome that the policy will pass through into adopted status. This flexible approach is endorsed in PPS1 The Planning System: General Principles issued in 2005, which states at paragraph 14 "Emerging policies in the form of draft policy statements and guidance can be regarded as material considerations, depending on the context. Their existence may indicate that a relevant policy is under review, and the circumstances which led to that review may be needed to be taken into account." I cannot identify the Planning Inspectorate advice that you mention, but maybe readers can assist the questioner. GH.
My authority’s development control teams take an inconsistent approach to proposals for domestic outbuildings in the green belt. One team considers that they are inappropriate development because PPG2 only refers to extensions that are not disproportionate. But the other team says that curtilage buildings should be assessed as extensions and are thus not inappropriate development. By way of compromise, it has been suggested that any outbuildings within 5m of the dwelling should be treated as extensions. I think this approach is flawed. What is your advice? TF.
Guidance in PPG2 on housing development within green belts is restricted to the "limited extension", alteration or replacement of existing dwellings and is silent on the construction of outbuildings. So it is reasonable to infer that such proposals are "inappropriate development" within the green belt. Some inspectors appear to have taken this approach. However, in Sevenoaks District Council v Secretary of State and Dawe  the courts held that a detached building could be treated as part of a dwelling even though physically separated from it. In addition, when considering applications for residential outbuildings in the green belt, the fallback position generally available to erect a very substantial new "incidental" building under Class E, Part 1, Schedule 2 of the General Permitted Development Order 1995 is an important consideration. In my view, given the proviso at Class E.1(c) it is reasonable to treat an outbuilding within 5m of the dwelling as an extension of it and apply the guidance on disproportionate additions set out at paragraph 3.6 of PPG2. PM.
Does section 38(6) of the Planning and Compulsory Purchase Act 2004 place other material considerations, for instance national policy, above the development plan in determining planning applications? If this is the case, it would mean national policy statements, prepared with minimal public involvement, would have huge weight, leaving local development plans concentrating on local issues such as land allocations. Please can you give some advice on these issues for someone about to start preparing a local development plan? CO.
Section 38(6) states, "If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise". Ultimately it is for the decision maker to determine the weight to be given to the considerations to be taken into account in dealing with a planning application in the light of section 38(6). Having said that, unless there are very strong reasons for departing from national policy which could be justified on appeal, it would be imprudent for a planning authority to ignore national policy in determining an application. Generally, when a local development plan is being prepared, it should take into account both national and regional policy, though there is also some scope for applying local considerations. National policy as expressed in ministerial circulars and guidance is not agreed by Parliament and sometimes is not the subject of other forms of public consultation, but the question of whether this procedure should be changed is beyond the scope of this column. JH.