Thursday, 24 March 2011

The new Ministerial Circular (which isn’t)

Coinciding with Wednesday’s Budget statement, the “Minister for Decentralisation” (Greg Clark) issued a written parliamentary statement, in which he said that ministers will work quickly to reform the planning system to ensure that the sustainable development needed to support economic growth is able to proceed as easily as possible. In all but name, this is a ministerial policy circular, and will no doubt be treated as such. Planning lawyers can be expected to quote from it enthusiastically at inquiries.

The statement recognises that many of the proposed actions will take some months to deliver, but it sets out the steps the Government expects local planning authorities to take with immediate effect. The Government's top priority in reforming the planning system is to promote sustainable economic growth and jobs, and the statement repeats Osborne’s words in the Budget statement itself that the Government expects the answer to development and growth wherever possible to be 'yes', except where this would compromise the key sustainable development principles set out in national planning policy.

Clark has reiterated the Government’s commitment to introducing a strong presumption in favour of sustainable development in the forthcoming National Planning Policy Framework, which will expect local planning authorities to plan positively for new development; to deal promptly and favourably with applications that comply with up-to-date plans and national planning policies; and wherever possible to approve applications where plans are absent, out of date, silent or indeterminate.

Local planning authorities are therefore called upon to press ahead without delay in preparing up-to-date development plans, and to use that opportunity to be proactive in driving and supporting growth. They are urged to make every effort to identify and meet the housing, business and other development needs of their areas, and to respond positively to wider opportunities for growth, taking full account of relevant economic signals such as land prices. Authorities, says Clark, should work together to ensure that needs and opportunities that extend beyond (or cannot be met within) their own boundaries are identified and accommodated in a sustainable way, such as housing market requirements that cover a number of areas, and the strategic infrastructure necessary to support growth.

When deciding whether to grant planning permission, Clark states that local planning authorities should support enterprise and facilitate housing, economic and other forms of sustainable development. Where relevant - and consistent with their statutory obligations - they should therefore:

(i) consider fully the importance of national planning policies aimed at fostering economic growth and employment, given the need to ensure a return to robust growth after the recent recession

(ii) take into account the need to maintain a flexible and responsive supply of land for key sectors, including housing

(iii) consider the range of likely economic, environmental and social benefits of proposals; including long term or indirect benefits such as increased consumer choice, more viable communities and more robust local economies (which may, where relevant, include matters such as job creation and business productivity)

(iv) be sensitive to the fact that local economies are subject to change and so take a positive approach to development where new economic data suggest that prior assessments of needs are no longer up-to-date

(v) ensure that they do not impose unnecessary burdens on development.

In determining planning applications, local planning authorities are obliged to have regard to all relevant considerations. They should ensure that they give appropriate weight to the need to support economic recovery, that applications that secure sustainable growth are treated favourably (consistent with policy in PPS4), and that they can give clear reasons for their decisions.

This is a coded way of downgrading the effect of Section 38(6), and is very much what I had expected the government to do. It faintly echoes the words of Michael Heseltine in Circular 14/85 (‘Lifting the Burden’) that “the Development Plan is one, but only one of the material considerations to be taken into account”. Of course, they can’t quite say that in light of what Section 38(6) now says, but they can still emphasise the exception written into that sub-section - “unless material considerations indicate otherwise”. The hint is that material considerations will now be expected to indicate otherwise rather more frequently than in the past. (Planning Inspectors please note!)

To further ensure that development can go ahead (and that infinitives are thoroughly and comprehensively split), all local authorities are now instructed to reconsider, at the developer’s request, existing section 106 agreements that currently render schemes unviable, and where possible to modify those obligations to allow development to proceed; provided this continues to ensure that the development remains acceptable in planning terms.

We don’t have the technology in this blog, but the next sentence ought to be in flashing neon lights: The Secretary of State will take the principles in this statement into account when determining applications that come before him for decision. In particular he will attach significant weight to the need to secure economic growth and employment.

The statement concludes that benefits to the economy should, where relevant, be an important consideration when other development-related consents are being determined, including heritage, environmental, energy and transport consents. The responsible ministers in other departments have consequently agreed that to the extent it accords with the relevant statutory provisions and national policies, decisions on these other consents should place particular weight on the potential economic benefits offered by an application. Those ministers will reflect this principle in relevant decisions that come before them and encourage their agencies and non departmental bodies to adopt the same approach for the consents for which those other bodies are directly responsible.

Reading all this gives me a great feeling of nostalgia. It is just like the old days again. Come back Michael Heseltine – all is forgiven!


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