Wednesday, 19 October 2011

Non-planning issues creeping in

I received an interesting note last month from Robert O’Leary of O'Leary Goss Architects Ltd. As he observes, there appears to be a definite shift in the extent to which planning applications are now being evaluated against technical matters that have traditionally been quite separate, and were previously dealt with through the Building Regulations process. This seems particularly invasive where addressing the technical issues would not affect the design or appearance of the proposed building insofar as this is presented for planning permission.

An example of the introduction of detailed and highly technical issues into the development management process under the guise of "sustainability" is provided by the September 2011 edition of Bristol City Council's Development Services e-bulletin produced by their Development Management and Building Regulations & Standards services, referring to “Sustainability Statements and changes to validation requirements”: Here are a couple of examples of the information which the planning department is now asking applicants to provide when submitting a planning application:-

For residential developments comprising 10 or more dwellings there is a requirement for a Code for Sustainable Homes assessment. The quoted policy also requires a Revised Report/Ratings to be submitted with the planning application, with the design stage assessment/interim certification submitted wherever possible. This is at variance with the Technical Guidance (Nov. 2010) for the Code which advises that for the design stage assessment…"The DS assessment is carried out on the detailed design of each dwelling in the period up to the issue of tender documents, sometimes referred to as RIBA Stages A–G. A Code assessment requires a more detailed specification than Building Regulations compliance because the Code covers many more aspects of the performance of the dwelling." It follows from this that it is entirely inappropriate for the LPA to require this information at the planning application stage.

Another paragraph requires the modelling of the proposed building(s) using a specific code, the purpose of which (according to its authors) “is to produce consistent and reliable evaluations of energy use in non-domestic buildings for Building Regulations Compliance and for Building Energy Performance Certification purposes". Again, it is entirely inappropriate for the LPA to require this information at the planning application stage.

As Robert O’Leary observes, these points raise a number of very important questions:

1. In formulating these very specific policies has there been any consideration of the practicality of preparing the considerable level of detail to a fixed and final form at the time of submission of a planning application?

2. There are no specific guidelines on what Code Level is desirable. The saving of "at least 20%” in CO2 emissions in the Council’s document does not indicate the baseline from which this saving is to be achieved.

3. How do these policies, and the desire to implement compliance with energy strategies by planning condition tie in with the Building Regulations? In the event of conflict between what is approved by Planning and what is required by, say, an amendment to the Building Regulations or a rethink of the energy strategy during design development, which takes precedence? What mechanisms have been set up to allow for dialogue between planning officers and either Building Control officers or Approved Inspectors?

4. How would a revised energy strategy (which has no effect on the siting, scale, massing, access or detail of the approved building) to comply with the Building Regulations be dealt with? Would this require a full planning application, a minor amendments application, or would it be dealt with as a discharge of conditions?

5. How will the content of the highly technical issues associated with the energy strategy be assessed at the time of the planning application? Also, by whom, and with what technical qualifications?

6. Is it correct to assume that the discharge of the condition covering the energy strategy/CSH/BREEAM assessment can only be discharged on completion of the dwelling? This raises significant practical difficulties with regard to the discharge of the relevant condition, which (in Bristol at least, and no doubt in a number of other authorities) may take 8 weeks or even longer. This could result in a delay at the end of any project of a minimum of 8 weeks, and probably more, whilst the LPA discharges the condition requiring CSH certification. The absence of a discharged condition to a planning permission will not allow any sale to complete or occupation to take place, with an ensuing potential financial nightmare for all involved. Given that all other conditions would have been discharged, I assume that this final submission would require a further fee payment (currently £85).

I entirely agree with Robert O’Leary, when he says that all of this raises some significant concerns. These include :

1. The attempt to set aside the process for compliance with the Building Regulations by the planning system.

2. The difficulty in enforcing this, particularly where the Regulations may change and differ from the detail forced into the planning permission. In short - which takes precedence?

3. The competence of anyone in the planning system to properly discharge compliance with these issues (which would usually be dealt with by experienced building control staff).

4. The confusion amongst officers associated with the planning process between the Building Regulations, and the approved documents (which are only one way of complying).

5. The increasing drive to require ever more detailed designs and expensive reports at the planning application stage.

All of this very clearly demonstrates the impossible position in which developers, their architects and other professional advisers are placed when the planning system is distorted by importing concepts and standards which should be confined to other regulatory regimes, in this case building control under the Building Regulations. There used to be clear ministerial policy guidance to the effect that non-planning issues which are dealt with under other regulatory regimes should not be dragged into the planning process and should not be treated as material considerations in the determination of planning applications. I cannot put my finger on this in the current guidance, although it may still be inferred from paragraphs 11 and 12 of “The Planning System: General Principles” annexed to PPS1. Ministers should ensure that this principle is clearly re-stated in the published version of the NPPF next year. Technical issues which need to be addressed in order to tackle climate change should be confined to the building control process under the Building Regulations, where they properly belong.

© MARTIN H GOODALL (with due acknowledgement to Robert O’Leary)


  1. I agree with you. There is some useful related advice in Circular 11/95 which supports the thrust of this argument.

  2. A year ago we submitted a planning application for two small studio flats. Before the LPA would even register the application they required, along with other information, a 'Code for Sustainable Homes Pre-Assessment'. The Client paid £400 for this and the assessor e-mailed it direct to me to print out and send to the LPA. It comprised 42 pages of computer-generated waffle.I deliberately missed out the last 10 pages to see what would happen. Nobody in planning noticed and I doubt anyone even opened the cover of the report. It was a complete waste of the Client's time and money.
    (the application was refused but we won it on appeal).

  3. LPAs seem completely oblivious to the cost of all these technical reports too - Kensington & Chelsea are the worst I've come across for technical reports that extend well beyond normal planning requirements.

  4. Strange that Kensington & Chelsea are major offenders given that they are led by a former high flying Planning Inspector!

  5. Is there ever a justification to make a non-planning matter a material consideration......? A developer has, prior to approval of outline permission and quite legitimately, had their building control application accepted. They are saying that the build out will be over 20-25 years. The effect of their valid building control application is to 'stop the clock' as far as any raised standards go meaning that in the mid 2030s houses will be built to 2011 standards. Whilst any cost implications will no doubt make for interesting future viability assessments as part of the likeley review mechanism, could/should the LPA make this an issue and attempt to close this apparent loophole with a condition/obligation to require the development to comply with the current standards in place at the time the relevant phase is commenced?

  6. This is an intriguing question. If the planners do not consider themselves bound by the approach taken by their building control colleagues they might try to impose more stringent conditions, which would create a very interesting situation! An appeal would be very likely in those circumstances. In practice, the way the developers have approached the matter, and the way the building control section have dealt with it, may be a powerful constraint on the freedom of the planners to go beyond what has already been agreed for building control purposes.