This popular and widely read blog acts as a Legal Commentary on issues affecting Town & Country Planning including recent changes in planning legislation and judicial rulings in planning cases, as well as some thoughts on other issues arising in the course of my work as a Planning Lawyer. It was originally intended mainly for fellow planning professionals, but all are welcome to read it. The views expressed are my own and nobody else’s.
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Monday, 25 June 2012
More non-planning issues
I have complained before of issues being dragged into planning decisions which go beyond what could reasonably be regarded as material considerations in the planning context. Unfortunately, no-one seems to have mounted any legal challenge to this trend yet, but a developer who is prepared to make a stand on the issue might sooner or later be prepared to have a crack at a local planning authority that is guilty of this sort of thing.
Just to take one example that has come to my attention, I recently heard of “Enplanner”, which I understand is a new tool developed in Bristol to help planning applicants meet on-site renewable energy policies. Developers, architects, agents and consultants were invited to a workshop last week to learn how it can help them meet the on-site renewable energy requirements which are now to be part of every planning application.
I understand that “Enplanner” is intended to make it easy for applicants to show, by creating an energy statement, that they have met local policy requirements. This involves demonstrating that they have included sustainable energy measures such as biomass, solar or combined heat and power in their developments.
I am told that “Enplanner” has been developed in conjunction with the Carbon Trust for use by all local authorities who have adopted on-site renewable energy policies. This goes beyond mere guidance. It involves a requirement to submit energy statements, which applicants are expected to complete on-line.
Even if you believe that saving the planet is an important policy objective, the appropriate vehicle for doing so is the Building Regulations. Until comparatively recently, a firm dividing line was maintained between the proper confines of town and country planning on the one hand, which is concerned with issues of land use and design, and on the other hand the technical requirements associated with the actual construction of buildings, including sound construction methods and materials, adequate natural lighting and ventilation, and more recently, thermal insulation standards and energy performance. These considerations are the proper concern of the Building Regulations.
What the requirement for energy statements in conjunction with planning applications and the adoption of on-site renewable energy policies is doing is to blur the distinction between the planning system and the Building Regulations regime. “Enplanner” may be a useful tool in connection with meeting Building Regulations requirements for energy efficiency, but it has no place in the planning system.
Bristol City Council seems mighty proud of its role in developing “Enplanner” as a planning tool, and boasts that every person building or extending property on however large or small scale will be playing their part in applying this policy. They claim that most developers welcome the opportunity to address climate change in their proposals. But what the planners fail to appreciate is that demanding this sort of information up-front at the planning application stage (and it is only one of a number of similar impositions that are being piled onto an already over-complicated and unduly bureaucratic planning system) is an insupportable burden on developers and their professional advisers at this comparatively early stage in the development process. It involves massive additional expenditure when the final design of the development has probably not been determined and when everyone can well do without this unnecessary complication.
Having established the principle of development and the overall design through the planning process, the proper time for working up the technical details, including any proper and reasonable requirements for sustainable energy measures such as biomass, solar or combined heat and power or whatever, is at the Building Regulations stage.
The government says that it is trying to cut down on red tape and wants to simplify compliance regimes across government. The sooner they put a stop to this sort of nonsense in the planning system, the better it will be for everyone.
© MARTIN H GOODALL
Don't blame Enplanner though, it's the policies that deserve your wrath! Sustainability is such a big subject, it's not surprising planners are searching for a simplified way to understand it. My own approach is fabric before renewables but nothing is as simple as that!
ReplyDeleteI do broadly agree with you, it is the Building Regulations Team that are best placed and qualified to deal with these sometimes quite technical matters, it is a further unnecessary burden on planners who are expected to become a Jack of yet another trade. However I think there is scope for changes to the present system to reach a middle ground as a lot of the issues involved are not always properly considered at the early design stage, for example in the orientation of the property to enable maximum solar gain for solar panels to name an example. This can result in delay if a redesign is needed at a late stage.
ReplyDeleteSpot on Martin; it must be B Regs' matter. In fact it beggars belief that it could even be contemplated to be otherwise. Just how out of touch is Whitehall?
ReplyDelete@Chris P above. Fabric first: also spot on---and very poorly understood by your average planning dept (though not all)
I have tried objecting to such policies in Core Strategies for exactly the reasons Martin has expressed, but been completely ignored by Inspectors. I now don't bother commenting on these policies as it seems to be a waste of time.
ReplyDeleteHowever, I have noticed one Core Strategy currently going through the examination process that does not include this type of policy and this should be strongly encouraged.
I certainly think there are two separate issues here.
ReplyDeleteIn fact, Enplanner is a genuine attempt to reduce red tape and costs of compliance with on-site renewable energy policies. It costs £175 to produce an energy statement using Enplanner and requires no professional skills beyond common sense. It was built because some professional advisers were charging anything between £1000-£10000 to produce energy statements which is utterly unnecessary given the very limited level of detail required to assess meaningfully and robustly whether renewables are suitable for a site at planning stage. As such Enplanner should be praised for cutting costs not condemned for increasing them.
The separate issue raised here is whether it is appropriate to include assessment of renewables' viability at planning stage rather than at building regulations stage. This is clearly a policy/political issue primarily, and a matter for local policy-makers. However, I would make the point that as it only costs less than £200 to determine whether a site is suitable for renewables at planning stage, whereas asking engineering consultants to evaluate this as part of a Building Regs compliance check or design stage can easily, again, cost several thousand pounds (for both developer and building control) it might well be in everyone's interest and the most efficient approach to do this check sooner (i.e., at planning stage) rather than later. We should not seek to make things more complicated than they actually are.
Unfortunately, this seems to me to be an area where common sense rarely gets much of a look in and people are often too eager to jump to conclusions.
I must declare an interest in this, because my company helped develop Enplanner for the Carbon trust and Bristol, but the objective was very clearly to reduce costs not increase them, and most users seem to agree that it has succeeded in this. I'd be happy to continue the debate if we can start from facts and realities, not just broad prejudices.
I have no problem with Enplanner as a concept and as a useful tool in the regulatory process; I simply think it is being applied within the wrong regulatory regime. It ought to be linked to Building Control rather than to the planning system. Architects repeatedly tell me that requiring this sort of information at the planning stage is putting the cart before the horse; it causes extra delay and expense to require this information in connection with a planning application. Enplanner would be a much more useful tool if it were to be applied in conjunction with the passing of plans under the Building Regulations, which is where technical issues of this nature should properly be thrashed out.
ReplyDeleteMany thanks for responding Martin.
ReplyDeleteThere is a fundamental underlying issue here though: just because something is (eventually) technical doesn't mean you should wait to start thinking about it until you're already committed to a project, no more than it makes sense to wait until you're in court before checking what the law is, or wait until your business is up and running before writing a business plan.
Most sensible people would want an initial indication of the likely implications of engaging in something before committing serious expense (or agreeing to support it) and surely this is what the planning system is for and the level it operates at (i.e., everyone with legitimate interests gets to debate a development armed with sufficient information to provide everyone with a reasonable sense of the implications, options and consequences, recognising that the costs of doing so should be as low as possible)?
All Enplanner seeks to do is to give this kind and level of information so that planning decisions are sensibly informed and fair to all parties, including those who like or dislike energy efficient buildings and renewables. It absolutely isn't a technical design tool, and I think those who object to considering energy strategies as part of the planning process are wrong in assuming you need to engage in design to inform outline energy strategies, no more than you need to do detailed architectural drawings and decide on the colour of door handles in order to develop masterplans.
I think those architects who take the views you describe are being highly selective in what they consider "technical" - the shape and fabric and use of a building is presumably non-technical in their view, while the way of heating it is somehow more technical ?! - I suspect the real underlying gripe here is that planning policy puts any constraint on architects at all, and simply a desire to minimise this (!). I can understand this, as we would all like to have absolute power over our work, but sadly we live in quite a crowded island, and there is thus a need for informed compromise on most issues (and happily for some, lots of lawyers too!) :).