Self Build Wales

Not infrequently my youngest daughter sends over details of land that she sees, ever hopeful that dad might have the skills and knowledge to deliver her a site for a dream home. Her aspiration is in fact very modest - somewhere to settle and live gently, quietly, sustainably with as least impact on that place as possible. I’m ever hopeful that one time ill see an opportunity where otherwise my parental instinct to protect from risk kicks in.

its with interest then that Self Build Wales has been launched including a portal that on face value aims to link plots with planning permission for “self build” (evidently those delivered by Local Authorities/RSLs etc through the supporting parts of Planning Policy Wales) to self build applicants to help delivery.

From a quick scan, I note that not one site yet has planning permission or is available to be applied for. The few sites in the pipeline are all in south Wales. It talks of design guides and energy efficiency and making the process easy. The BBC tells us its a world first.

You have to applaud the effort. Not least it de-risks the development process through involvement of Development Bank of Wales who will provide loans to fund development of these plots. Welsh Government states “The scheme aims to remove the barriers and uncertainty around self-builds and custom-builds – such as finding a plot, planning and finance - enabling more homes to be built and enabling Welsh builders to focus on building quality homes”.

Whats not clear is whether whats being offered is land with “just” planning permission or whether these sites are further down the sausage machine of delivery whereby planning conditions or S106’s are resolved and essential supporting infrastructure (water, power, ecology and mitigation, drainage/SAB approvals to name a few) consented and secured {or at least having been discussed and principles agreed}. It is hoped so, because although planning can be barrier to delivery, these others can be just as tortuous and bureaucratic if not more so, particularly to the one-off “self builder”.

My inner cynic wonders just how much this is a headline grabbing exercise, and whether precious and limited Local Authority resources might be better spent unlocking larger stalled or as yet undelivered LDP sites to deliver greater numbers and bringing them to market. Nonetheless, I wish it well.

Ive made a diary note for 8 weeks hence to see how many of the “in the pipeline” sites have progressed as I’m certain success of this kind of portal approach will hinge on users getting results. I will update.

Major Residential Development. Notification to Welsh Ministers

Welsh Government is full of surprises. Yet another unheralded move took immediate effect from 15 January 2020 with publication of the Town and Country Planning (Major Residential Development) (Notification) (Wales) Direction 2020.

The Direction imposes a duty on Planning Authorities to refer applications to the Welsh Ministers where they are minded to grant planning permission for residential development of more than 10 residential units or residential development on more than 0.5 hectares of land which is not in accordance with one or more provisions of the development plan in force. It applies to all applications for such development lodged on or after 15 January 2020.

Previously the duty has applied to “significant” residential developments of 150units + or sites of 6ha or more.

The Directions prevents the Council granting planning permission, were it minded to do so, for 21 days to allow Welsh Government to consider whether to “call-in” the application, various provisions for earlier release, holding directions etc.

Its a move designed to effect uptodate Local Development Plan coverage according to the Minister. More worryingly, it fires another shot across the bows of the development sector referencing yet again the term speculative development in Government statements. The negative connotations this term promotes fails to acknowledge how the failure throughout Wales to produce deliverable LDP’s and the continuing absence of sites that are deliverable, viable in sustainable places where the market wants to build and people need and want to live.

The associated Circular offers no guidance as to how far Welsh Government intend to go in intervening - could it be a light touch oversight or will it call-in a larger number of applications? Time will tell. Neither Government nor Planning Inspectorate has the resource to manage large caseloads if its the latter and will serve only to further delay the delivery of planning permissions.

A fundamental point for Local Authorities to resolve quickly is whether a scheme which, in the ordinary course of events, conflicts with a small part of development plan, but where the planning balance when assessing material considerations weighs in favour of granting permission, needs to be notified to the Minister. As per the 2012 Direction, it requires local authorities must, when notifying the Minister, provide “ a statement of the material considerations which the authority consider indicate (if such be the case) that an application for major residential development should be determined otherwise than in accordance with the local development plan”. That suggests to me that any conflict with the development plan in force may well trigger the duty to notify. Certainly it opens the door to increased risk of challenge on procedural grounds where LPA’s do not do it.

Planning Fees Wales

Welsh Government announced a consultation on increasing planning application and related fees by 20% yesterday. A typical £380 fee would rise to £460.00. Inflation over the period of !0% suggests £420 at current rates. The proposal therefore would deliver a real term 10% increase, at least at the point of introduction.

We expect, as is becoming the norm with Welsh Government planning consultations, this is less consultation and more pre-announcement of it doing (or undoing) something. The Consultation tells us:

• Our evidence suggests the current fee levels for applications are not sufficient to run an efficient development management service as cost recovery is not being achieved. LPAs continue to lose vital income, with the inequality between fees and costs expanding.

You need only look at weekly submission lists to see that many Councils are now - as a direct consequence of legislation Welsh Government introduced - swamped with “low” fee earning applications such as those to discharge planning conditions or for non and minor material amendments. Each bears the same core costs (receipt, administration, consultation, actual processing and issue of decision notice - not least “living decision” notices) as much larger applications.

Historically, planning fees don’t fund planning services directly. In most cases fee income goes directly into core Local Authority funds which planning services are funded from. The consultation tells us In return (for the 20% increase) , we require the additional income generated from the fee will remain the service provision budgets of LPAs and not be offset by an equivalent reduction in corporate funding for the service.

We are sure clients will welcome increased funding retained within Planning Services especially where this plug gaps in skills, improves resources and services to help them achieve placemaking and efficient processing of planning applications. They will not welcome the status quo.

The Consultation also announces future review of the Planning Service funding and fee regimes, with Welsh Government intending to

• consider need to reform the method for charging fees and fees levels in the longer term.

• carry out research on the true costs of running development management services in greater detail against the cost of individual applications.

• carry out investigative work into the efficiency of development management teams in determining applications, speed of determination and processes and procedures..

More change to come then?

The Consultation is open until 13 March 2020.

Its in the description

The Appeal Court handed down judgement in the case of Finney and Welsh Ministers yesterday. The long running case involved wind turbines, where the blade tip height had been increased from 100m to 125m under a section 73 application. It has become commonplace to use S73 to vary approved drawings to authorise modifications to a permitted development, often through reference to varying the conditions attached to that permission. The case dealt with the basic matter of the change of the description of the development (from 100 to 125 metres) and whether S73 permits that.

Lord Justice Lewison following review of previous case law and S73 of the Act states : The natural inference from that imperative is that the planning authority cannot use section 73 to change the description of the development .

The judgement establishes that it is not lawful to a vary description of an approved development under an application made using the S73 of the Act.

There are still powers and remedies including the potential to use S96A “Non material amendment” powers to secure that same objective (albeit i would suggest the scope for that may be limited); or through an entirely new application for planning permission. Particularly here in Wales, the judgement may have significant consequences for varying major developments where the statutory PAC processes (which do not apply in S73 cases) will be re-triggered.

The immediate lesson? Secure professional advice early on the scale, scope and description of development.

Planning Appeal Success: Correctly engaging Policy and Guidance.

If a policy says you will compile a list of buildings the policy applies to, there should be a list of those buildings compiled. Sounds easy when you put it like that doesnt it?.

A recent Appeal decision highlights how Council’s must be very careful when considering whether to engage a Development Plan policy and Supplementary Planning Guidance. The case in point sought to replace a dilapidated farm building with a new dwelling. The Council applied a LDP policy relating to (non statutory) Building and Structures of Local Importance (BLSI). By so doing it refused planning permission citing conflict with the BLSI policy which the Council considered had a preference to retain the building, that both demolition and the replacement building would harm the integrity and setting of the relevant building and other alleged BSLI in a farm complex as well as to the overall design of the replacement dwelling.

We had not been involved prior to the refusal of planning permission. However, it was obvious from very first sight of the building, it was highly dilapidated despite repairs to stem further deterioration and was in a very poor state. Crucially a “list” of locally important building(s) did not actually exist under the terms of the relevant policy. In that context there was no reason for planning permission to have been withheld. Pete advised initially on application to demolish the building under the Permitted Development regime and then on the Appeal .

The appeal set out that the Council could not reasonably allege conflict with a Development Plan policy where the policy doesn’t apply in the first place - ie if there was no list of BSLI or the building wasn’t on a list that existed then the policy should not be applied. It also set out that Supplementary Guidance document which supported the Policy contained a mechanism enabling the Council to consider whether a non BLSI at the time of making the planning application could be objectively assessed for inclusion in a list whilst the planning application was considered (a not entirely satisfactory situation). Oddly however, the Council did not apply this part of its guidance during the planning application assessment either.

In his decision letter granting planning permission, the Inspector:-

• found the policy text states that a local list of such buildings will be compiled (with SPG setting out the methodology for such a list and identifying criteria and additional controls);

• disagreed with the Council argument that engagement of the policy is not conditional upon the inclusion of the building as a BSLI.

• stated the policy was predicated on identifying buildings/structures of local interest, otherwise it would be so vague that plan users would not know what constitutes a BSLI, with such a designation being applied at the discretion of the Council and

• in the absence of a rational approach to identifying the existing farm building as a BSLI, as referred to in the supporting text of policy ( and the SPG) he did not consider the policy to be applicable or relevant to the development.

In further critique of the Council approach the Inspector found it had given little in the way of meaningful explanation as to the important contribution to the character and interest of the local area the building makes by way of, for example, its distinctive appearance or architectural integrity i.e. what makes the structure a BSLI.

In concluding the Council had acted unreasonably in claiming the building was a BSLI the Inspector considered “the Council’s approach and rationale in terms of applying the policy…lacked substance and was taken without giving adequate consideration to the accompanying explanatory text”. He awarded Costs against the Council on the matter.

The case raises a salutary point where Development Plan Policy relies on a Council carrying out an action (eg compiling a list of BLSI) to engage the Policy, it clearly must do so for the Policy to take any effect. Otherwise Councils risk misapplication of policy and supplementary planning guidance at their peril.

North Wales LDP Update

Like buses, you can wait for ages and suddenly three turn up at the same time.

Conwy County BC commenced consultation on the Preferred Strategy for its replacement LDP from Monday 29 July 2019 to Friday 20 September 2019.. Denbighshire County Council is doing the same for its replacement LDP between 08 July 2019 and 30 August 2019. Although both documents set high level strategies to guide the detailed deposit plans they set out the overall strategy and general scale and likely location of development for the period of the plans.

Flintshire County Council has recently resolved to put its Local Development Plan on deposit from 30 September 2019.

We can never stress enough that your input to Emerging Policy documents and Plans can be crucial as it is far better and often more cost effective to influence the direction of a plan at this stage than latterly to be looking to present scheme that comply with plans. We are here to take your specific instructions

Speaking up for you

Amongst many of the things we do to help your schemes get planning permission is attending and speaking at Planning Committee. Often given a just a short 3 minutes or so to speak to get the ear of Councillors, it’s important that points made are succinct and relate to the key planning points Councillors need to hear.

Pete recently spoke on a scheme at the Neville Hotel in Llandudno, where officers were recommending refusal on flooding and highways grounds. As the Daily Post reported the following day, Councillors overturned officers recommendation and have resolved to grant planning permission. We are now in the process of looking to resolve the points outstanding to secure another permission.

Wales News and Update. July 2019

I suspect Welsh Planners attending the Wales Planning Conference were still taking in the content of early Keynote speech by Julie James, Planning Minister in Wales ( or rather the Minister for Housing and Local Government to give the official title) recently when a man from the Wales Audit Office set about presenting its report on the Effectiveness of Local Planning Authorities in Wales. The Headline points emerging:

• Reduced resources across Welsh Local Planning Authorities. (budgets reduced by 50% since 2008/9.

• Planning Services struggling to deliver an increasingly complex system. Poor communication.

• Increased planning application processing times.

• Lack of resilience in services.

• The 2016 pre-application front-loading process isn’t delivering hoped-for outcomes.

• Recommendation that Planning fees better reflect the cost of delivering the service.

As they struggle to cope with that, Welsh Government issued for consultation, its updated Draft Development Plans Manual (Edition 3) reflecting changing legislation and PPW10. Particular matters include guidance on viability (assumption of viability at the point of site allocation in an adopted plan), the front-loading of LDP work and evidence base, high level viability testing at Candidate site stage and detailed testing of strategic sites plus a duty on developers and landowners to engage fully and meaningfully in the process of promoting sites in the Plan. The way WG sees public involvement in the preparation of Development Plans and how that subsequently feeds into the development management process (such that communities should not get any surprises when a planning application comes forward), suggest to me an awful lot of work on communication by both WG and Councils still needs to be done.

Flood risk never far from our minds . Hot off the press is a consultation on the draft National Strategy for Flood and Coastal Erosion Risk Management setting out WG objectives for that. It was expected that a new draft TAN 15 (development and flood risk) would emerge alongside for consultation given the obvious links. It hasn’t yet, but my spies indicate this will emerge before the summer recess in Cardiff.

HBF Wales and others have drawn attention a long awaited appeal decision issued for up to 189 houses made by the Minister in Wrexham. The key issues concerned housing land supply (nil given its expired UDP) , Green Barrier location (and intended re-designation as such in emerging LDP), housing need, uncertainty despite emerging LDP and totality of other other matters (including national place-making outcomes and contribution to sustainable development). These amounted to Very Exceptional Circumstances to set aside the PPW presumption against inappropriate development in the Green Barrier. The case is all the more interesting because the dis-application of para 6.2 of TAN 1 was highly material and the Minister sought to hear further evidence on the issue.

The Minister accepted the Inspectors report and as decision maker allowed the appeal. It is helpful not least in that it provides clarity, as I have been advising clients since last July, that the Minister’s letter of 18 July 2018 does not say that no weight should be given to the need to increase housing supply. The decision confirms that a decision maker has the discretion on the evidence and facts of any particular case, (in spite of the dis-application of para 6.2) when engaging the presumption in favour of sustainable development to conclude that the need to provide or increase housing land supply remains a significant material consideration.

Lodge Park given 12 month holiday use.

Working for a long-time client, they were thrilled today to have learned that their planning permission for a lodge park in Flintshire has been extended to allow for holiday use through the year. This is the second consent we have secured for this client to provide high quality, year round holiday use on caravans parks. securing additional economic benefits to North Wales.

Day Nursery conditions removed and varied

After nearly 2 years trying to extend and open her day nursery in Wolverhampton, PLPlanning were approached to assist. A day nursery has run from the site for many years and had an urgent need to provide additional space to meet demand for places. Following a previous refusal of planning permission, planning permission to extend the nursery had been secured. However permission was subject to newly imposed conditions:

1. Restricting the hours of operation and numbers of children who could attend the nursery (where there was no previous restriction),

2. Limiting the numbers of children who could play outside (where there was no previous restriction) and,

3. Imposing a requirement to carry out a Traffic Regulation Order (TRO) to limit parking on the road.

The Council had refused permission to vary one condition and delete the other.

The appeal set out what the Inspector in his decision letter described as a compelling case to delete the TRO condition completely on the grounds it was unreasonable and unnecessary. The inspector also concluded that restricting the numbers of children playing outside would place a significant burden on the current operation of the nursery, which has no such restrictions and accepted that the difference between the impacts of the existing, the approved and the scheme as sought would not be materially discernable. He therefore removed the restriction on outdoor play number, increased the opening hours and approved to up to 106 children attending the day nursery.

Yet another great result and delighted client.