Wednesday, 16 June 2010

Hammering home the message

Just in case they hadn’t got the message, Steve Quartermain, the chief planner at DCLG, wrote to LPAs yesterday (15 June), drawing their attention to the amendments made to PPS3 last week, viz: the exclusion of private residential gardens from the definition of previously developed land in Annex B of PPS3, plus the deletion from paragraph 47 of the national indicative minimum density of 30 dwellings per hectare. These changes, he says, emphasise that it is for local authorities and communities to take the decisions that are best for them, and decide for themselves the best locations and types of development in their areas. In other words, it’s a free-for-all so far as the level of provision of housing sites is concerned.

Quartermain repeats that LPAs and PINS are expected to have regard to this new policy position in preparing development plans and, where relevant, to take it into account as a material consideration when determining planning applications.

One wonders why DCLG has found it necessary to press the message home in this way. Only Rip Van Winkle could have missed the hoo-ha over last week’s announcement. Is it perhaps that the Department dimly perceives that their announcement has received a less than rapturous reception, and that even LPAs, as the alleged beneficiaries of the new policy, are querying the resulting policy vacuum in which they are being asked to operate?

A more detailed announcement regarding the abolition of RSS has been promised for 22nd June. But it seems unlikely that this will provide any greater enlightenment, as ministers don’t seem to appreciate the huge void in planning policy which they have created. They don’t appear to have any plans to fill the gap anytime soon, and so chaos will reign. PINS will have the most difficult task of all, faced with having to determine Section 78 appeals in this situation.

The only safe course is to apply the provisions of Section 70(2) of the 1990 Act and Section 38(6) of the 2004 Act, relying on whatever it is that legally constitutes the Development Plan at the time the appeal is determined. Bearing in mind that the S of S has chosen not to use his powers under Section 10 of the 2004 Act to rescind RSS immediately, those RSSs which have been formally promulgated by the S of S remain for the time being part of the statutory Development Plan and must continue to be treated as such.

The S of S’s intention to abolish RSS in the forthcoming ‘decentralisation’ bill is undoubtedly a material consideration, which could in principle indicate that the appeal before the Inspector should be determined otherwise than in accordance with the Development Plan. But the weight to be given to such material considerations is a matter for the decision-maker, and an Inspector may not necessarily feel that the intention to abolish RSS is an over-riding consideration when all the other material considerations, including the demand for housing in the LPA area, are taken into account. PPS3 (as amended) remains, of course, one of the major material considerations, and I have already pointed out that (apart from the deletion from paragraph 47 of the national indicative minimum density of 30 dwellings per hectare) the advice on the efficient use of land (paragraphs 45 to 51) remains in place.

So, despite the huffing and puffing from ministers and from DCLG’s Chief Planner, Inspectors may still allow appeals against the refusal of housing proposals on ‘garden land’ and other sites where this appears necessary in order to meet the strategic need for housing in the locality, and where it is an efficient use of land within the urban area or within the relevant settlement boundary. The policy of protecting ‘green field’ sites (which has not been amended or watered down in any way) means that we must still maximise the development potential of urban land, even if it is currently garden land.


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