Environmental Protection & Planning A guide for environmental health professionals

This guide is endorsed by:

Published 15th October 2010 - latest updates Contact officer: Laura Rose – [email protected] Go to: Contents

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Environmental Protection and Planning: A guide for environmental health professionals Contents AIMS AND STRUCTURE OF THE GUIDE UPDATES TO THE GUIDE PART 1: Strategic Planning National planning policy  Planning Policy Statement 23: Pollution Control  Planning Policy Guidance 24: Noise Regional planning policy Local planning policy  Introduction to Local Development Frameworks (LDF)  Development Plan Documents (DPDs)  Supplementary Planning Documents (SPDs)  Creating DPDs and SPDs  Sustainability Appraisal and Strategic Environmental Assessment The relationship between spatial planning and other local documents  Sustainable Community Strategies (SCS)  Local Area Agreements (LAA)  Local Transport Plans (LTP) Influencing planning policy  National Core Output Indicators for planning  Drawing on relevant guidance  Collaborating with other Local Planning Authorities PART 2: Development Management Turning policy into quality development Development control or development management? Overview of the development planning process  General Permitted Development Orders (GPDO)  Use Class Orders (UCO)  Pre-application discussions  Validation and notification of planning applications  Outline applications  Commenting on Environmental Impact Assessments (EIA) Go to: Contents

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Involvement in Health Impact Assessments (HIA)

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Drafting planning conditions, including: - the six tests for valid conditions - common problems with conditions - how conditions interact with controls imposed by other legislation

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Agreeing ‘section 106’ planning obligations Grampian conditions and Grampian-style obligations The Community Infrastructure Levy Monitoring and enforcement

Influencing planning decisions, including: - Performance targets for determining applications - The role of planning committees APPENDICES 1. Checklist for good practice 2. The planning glossary

Index of case studies              

Mid Devon District Council: planning for better air quality Wigan Metropolitan Borough Council: tips for developing Supplementary Planning Documents (SPDs) Greater Manchester: Local Transport Planning (LTP) Air Quality Working Group Suffolk: developing a county-wide policy on “Air Quality Management and New Development” Warrington Borough Council: disseminating knowledge on contaminated land Lancaster City Council: Lancaster’s planning manual Wigan Metropolitan Borough Council: applying the development team approach Purbeck District Council: funding pre-application discussions Mid Devon District Council: Environmental Protection and Development Control consultation mechanism Horsham District Council: reviewing Environmental Impact Assessments London borough of Greenwich: using Section 106 agreements to improve air quality The London Cross Rail project: section 106 agreements and the Community Infrastructure Levy London Borough of Islington: proactively monitoring section 106 agreements Council X: the dangers of unmonitored, unenforced conditions

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Aims and structure of the guide Both Planning and Environmental Protection sit at the very heart of council services, helping to shape the places where we live and work to develop safe and prosperous communities. The aim of this reference guide is to cut through the jargon of planning and provide Environmental Health Professionals (EHPs) with a clear overview of the key documents and processes within the current planning system, including:  understanding the main indicators and objectives that frame the work of local authority planners;  identifying shared goals and ‘win-wins’ for both professions as well as opportunities to negotiate and compromise; and  promoting successful communication with both strategic planning and development management teams in order to develop consistent policies across the council and share relevant evidence and skills. Along the way we have signposted further resources, including examples of good practice. Navigating your way around the guide  This guide is split into two sections addressing the two main planning functions: Strategic planning - establishing local policies that guide development Development management – handling project-specific planning applications, appeals and enforcement.  Key terms are included as hyperlinks to allow you to quickly find an explanation of an unfamiliar process or document.  Suggested actions are highlighted in bold purple to demonstrate opportunities to influence different stages of planning to protect the environment.  A glossary is provided to identify the meaning of key planning terms or acronyms, and each page includes a hyperlink to take you directly to the glossary or contents. Local Government Regulation (LGR) has also produced an equivalent guide for planning professionals on ‘Environmental regulation and planning’. We would recommend that you circulate a copy to both your strategic and development planners to help them understand the work you do. Not sure planning is relevant to you? Reasons to get involved in local planning strategy and decision-making  Setting clear and consistent expectations of developers from day one: explore how Mid Devon have joined up air quality and local planning policy.  Planning out problems: poor design can quickly result in an unappealing streetscene – producing a ‘Design guide’ as part of your Local Development Framework may be the answer to eliminate these problems.  Saving time and resources in the future: look at Islington’s approach to avoiding nuisance complaints during the construction phase becoming a drain on the council’s resources through using planning obligations.  The consequences of not getting involved and not getting it right are significant: could unenforced conditions leave you with a contaminated land nightmare?

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Updates to the guide Planning is continually evolving and therefore this guide will be a live document that is regularly updated to take into account important changes. The Planning Act 2008 is just one example of changes that are ongoing within the planning system. This Act is not currently covered within this guide as, even as we launch this first version, the new Government has outlined changes to the system for decision making on major infrastructure projects, such as power stations and hazardous waste facilities. For example:  the Infrastructure Planning Commission (IPC) created under the 2008 Act to decide whether Nationally Significant Infrastructure Projects (NSIPs) can go ahead, is being abolished. According to the Department for Communities and Local Government, “it will be replaced with a new rapid and accountable system where Ministers, not unelected commissioners, will take the decisions on new infrastructure projects critical to the country's future economic growth. A Major Infrastructure Planning Unit will be established in the Planning Inspectorate to continue fast-tracking major infrastructure projects like offshore windfarms and nuclear power stations”. See the full press release on 'Major infrastructure stays on fast-track as planning quango closes'. Much of the information in the ‘Planning Act 2008: guidance for local authorities’ document will also still be relevant: www.communities.gov.uk/documents/planningandbuilding/pdf/1521327.pdf LG Regulation may look to provide an update as we know more about the implications and opportunities for local authority environmental protection services. In the meantime you can keep up-to-date by visiting www.communities.gov.uk/newsroom/. More details on the proposed direction of planning can be found in the Conservative Party Green Paper,“Open Source Planning”: www.conservatives.com/~/media/Files/Green%20Papers/planning-green-paper.ashx To allow you to easily locate new material, all updates will be recorded in the table below: Date of amendment

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Part 1: Strategic Planning 1.1 ‘Strategic Planning’, ‘Forward Planning’, ‘Town Planning’, ‘Sustainable

Development’, ‘Regeneration’ – whatever the title of the department with responsibility for strategic-level planning within your authority, it is important that you know who they are and what they do. ‘Forward’, ‘Strategic’ or ‘Policy’ planners are responsible for producing the Local Development Framework (LDF) - an essential “folder of local development documents that outlines how planning will be managed in your area”. When producing these local-level documents forward planners are guided by a number of other documents, including a set of national Planning Policy Statements (PPSs) and Guidance notes (PPGs). The local planning policy they produce must be consistent with these.

National planning policy 1.2 Each Planning Policy Statement (PPS) sets out the Government's overarching

planning policies and the relationship between planning and other policies that have a strong link to development and land use. You might not think these are all directly relevant to your work but it’s worth having a look at the following to gain a good overview of planning aims:  PPS 1 covers ‘Delivering sustainable development’ and includes paragraph 20 which highlights the environmental issues that local development plan documents should take account of (including light pollution which is less well covered elsewhere). There is also a supplement on ‘Planning and Climate Change’.  PPS 3 sets out the national planning policy framework in order to deliver the Government’s housing policy objectives.  PPS 25 looks at Development and Flood Risk. 1.3 A few key statements from the most relevant policy documents to environmental

protection are identified below. It is strongly recommended that you familiarise yourself with these documents. 

PPS 23 on Planning and Pollution Control This document states that “any consideration of the quality of land, air or water and potential impacts arising from development, possibly leading to an impact on health, is capable of being a material planning consideration, in so far as it arises from any land use” (paragraph 8) Annex (1) on Planning and Pollution Control “The planning system should focus on whether the development itself is an acceptable use of the land, and the impacts of those uses, rather than the control of processes or emissions themselves. Planning authorities should work on the assumption that the relevant pollution control regime will be properly applied and enforced. They should act to complement but not seek to duplicate it”1.

Harrison v Secretary for CLG and Cheshire West & Chester Council [2009] EWHC 3382 recently saw the High Court explore what is the correct interpretation of this wording in PPS23. 1

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“[Local Planning Authorities LPAs] should consult the pollution control authority at an early stage on proposals for potentially polluting development to minimise the prospects of conflicting requirements being imposed on developers under the planning and pollution control regime and undesirable duplication of pollution controls through the planning system” (PPS 23 Annex 1, Para 1.33) “LPAs, transport authorities and pollution control authorities should work together to ensure development has a beneficial impact on the environment…It may be appropriate in some circumstances for the developer to fund mitigation measures elsewhere inside the Air Quality Management Area to offset any increase in local pollutant emissions as a consequence of the proposed development” (PPS 23 Annex 1, Para 1G.2). Annex (2) on Development on Land Affected by Contamination The annex identifies examples of potentially contaminating uses of land and situations where land may be affected by contamination. It also gives examples of ‘pathways’ and the effects of land contamination. “Land contamination, or the possibility of it, is therefore a material planning consideration in the preparation of development plan documents and in taking decisions on individual planning applications”. (PPS 23, paragraph 20) “Local development documents provide a prime opportunity to steer appropriate development onto previously developed land within the context of the wider planning policies within an authority area. As well as protecting greenfield sites from development, this can help bring about progressive improvement in the condition of land as a whole, provided that contamination is identified and properly dealt with…[Local development documents] should include appropriate policies for the remediation of contamination…” (PPS 23 Annex 2, Para 2.29). “…for planning purposes, the assessment of risks arising from contamination and remediation requirements should be considered on the basis of both the current use and circumstances and its proposed new use” (PPS 23 Annex 2, Para 2.12). “The standard of remediation to be achieved through the grant of planning permission for new development … is the removal of unacceptable risk and making the site suitable for its new use, including the removal of pollutant linkages”. (PPS 23, Annex 2, paragraph 2.51) “Where contamination is known or suspected or the proposed use would be particularly vulnerable, the LPA should require the applicant to provide with the application such information as is necessary to determine whether the proposed development can proceed… the minimum requirement that should be provides by an applicant is the report of a desk study and site reconnaissance (walk-over)“. (PPS 23 Annex 2, paragraph 2.42 & 2.43)

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“A potential developer will need to satisfy the local authority the unacceptable risk from contamination will be successfully addressed through remediation without undue environmental impact during and following the development“. (PPS23 Annex 2, paragraph 2.18) 1.4 PPSs are gradually replacing the old Planning Policy Guidance Notes (PPG)

although a number of these still exist and it is important to be aware of these and look out for changes in the future: 

PPG 24: Planning and Noise This guidance note aims “to provide advice on how the planning system can be used to minimise the adverse impact of noise without placing unreasonable restrictions on development or adding unduly to the costs and administrative burdens of business” (Paragraph 1). It also includes six annexes that address noise levels, specifying noise limits and provide examples of planning conditions. However it is worth being aware that this document has not been updated since 1994. “…the planning system should ensure that, wherever practicable, noisesensitive developments are separated from major sources of noise (such as road, rail and air transport and certain types of industrial development)... and that potentially noisy developments are located in areas where noise will not be such an important consideration or where its impact can be minimised” (Paragraph 2). “Where it is not possible to achieve such a separation of land uses, local planning authorities should consider whether it is practicable to control or reduce noise levels, or to mitigate the impact of noise, through the use of conditions or planning obligations…” (Paragraph 2) [Local development] plans should contain an indication of any general policies which the local planning authority proposes to apply in respect of conditions or planning obligations” (Paragraph 7).

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PPG 18: Enforcing planning control This guidance note is now considerably out-of-date, having been published in 1991. The move towards development ‘management’ rather than ‘control’ will require a review of the national policy on enforcement. Until then PPG18 remains in force and lays out in paragraph 5 the general approach to enforcement and in particular highlights that: “(1) Parliament has given LPAs the primary responsibility for taking whatever enforcement action may be necessary, in the public interest, in their administrative area (the private citizen cannot initiate planning enforcement action); (2) the Commissioner for Local Administration [official title of the body that runs the Local Government Ombudsman service] has held, in a number of

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investigated cases, that there is "maladministration" if the authority fail to take effective enforcement action which was plainly necessary and has occasionally recommended a compensatory payment to the complainant for the consequent injustice; (3) in considering any enforcement action, the decisive issue for the LPA should be whether the breach of control would unacceptably affect public amenity or the existing use of land and buildings meriting protection in the public interest; (4) enforcement action should always be commensurate with the breach of planning control to which it relates (for example, it is usually inappropriate to take formal enforcement action against a trivial or technical breach of control which causes no harm to amenity in the locality of the site)…”. Opportunities for EP to influence national planning policy: The Coalition Government is reviewing planning policy and has indicated that it may consolidate some of the PPS/PPGs. LG Regulation will update this guide when more is known but keep an eye out for opportunities to provide environmental protection input into consultations on new draft documents: www.communities.gov.uk/planningandbuilding/planningsystem/planningpolicy/

Regional planning policy 1.5 Up until recently regional planning policy was part of the fabric of the planning

system, with the Local Democracy, Economic Development and Construction Act 2009 requiring the development of Regional Strategies (RS). The RS was intended to replace the existing Regional Economic Strategy (RES) and Regional Spatial Strategy (RSS) for each region, as well as integrating the substance of other regional strategies on culture and sport, housing, biodiversity and transport. The RS was supposed to “articulate a clear and long-term vision of what the region will look like in 15-20 years time, set out how this will be achieved, and how this contributes to meeting sustainable development objectives”2. All local planning authorities within the region were also required to ensure their local planning policies were consistent with their region’s RS. th

1.6 On the 6 July 2010 this all changed when the Secretary of State for the

Department of Communities and Local Government used his reserve powers to revoke all RSs although the London equivalent, the London Plan, remains for now. In the longer term RSs will be abolished under the ‘Localism and Decentralisation Bill’. The Secretary of State described how “Regional Strategies added unnecessary bureaucracy to the planning system. They were a failure. They were expensive and time-consuming. They alienated people, pitting them against development instead of encouraging people to build in their local area. The revocation of Regional Strategies will make local spatial plans, drawn up in conformity with national policy, the basis for local planning decisions. The new

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planning system will be clear, efficient and will put greater power in the hands of local people, rather than regional bodies.”3 1.7 Questions and answers on how these changes will affect local authorities have

been produced by CLG. www.communities.gov.uk/documents/planningandbuilding/pdf/1631904.pdf. The removal of regional planning policy leaves local planning authorities with policy gaps and now is a good time to go to your policy planners to share helpful expertise and evidence to help get local policies in place.

Local planning policy 1.8 Each Local Planning Authority (LPA), in the shape of your forward or policy

planners, is responsible for producing your Local Development Framework (LDF). LDFs were introduced by the Planning and Compulsory Purchase Act 2004 to replace the old Unitary Development Plans (UDP) in unitary authorities and Local Plans (LP) in district authorities. Existing planning policies adopted as part of UDP/LPs were “saved” for three years after adoption under the 2004 Act. However, in light of the significant amount of work involved in producing each individual local development document, some local authorities will have applied to the Secretary of State to extend this period further if they feel their existing policies already reflect the principle of LDFs and are consistent with current national policy. Each local authority will be at a different stage of developing the LDF – take a look at your council’s publicly available Local Development Scheme (LDS) to see how this project is progressing. 1.9 The Government’s Planning Portal describes an LDF as “a folder of local

development documents that outline how planning will be managed in your area”. For an interactive guide to the contents of each LDF visit: http://www.planningportal.gov.uk/uploads/ldf/ldfguide.html

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Each LDF will be different, with a mixture of compulsory elements and optional documents that can be produced depending upon the local circumstances. These include: 1.10 Development Plan Documents (DPD)

Within this set of documents all councils must produce: (i) a Core Strategy This outlines the overall vision for developing the area and places within it with - strategic objectives that focus on the area’s key issues; - a delivery strategy for achieving these objectives; and - arrangements for monitoring the strategy. Within the Core Strategy, councils are allowed to make Site-specific Allocations to allocate strategic sites for development, and Planning Policy Statement 12 on Local Spatial Planning states that “these should be those sites considered central to achievement of the strategy”. (ii) an Adopted Proposals Map This illustrates all site-specific policies in all the adopted development plan documents as well as identifying areas of protection such as green belt land, and showing areas at risk from flooding. In addition councils may choose to produce Area Action Plans to plan the development of specific locations where significant change or conservation will take place to ensure “development of an appropriate scale, mix and quality for these key areas”5. 1.11 Other Development Plan Documents can also be produced on particular

themes, subject to consideration of criteria within paragraph 5.1 of Planning Policy Statement 12 about whether these are necessary. Considerations include whether the Core Strategy already adequately covers the issue or whether there is a need to address environmental pressures, constraints and opportunities such as flood risk or coastal erosion. For example, some councils may produce a separate development management DPD that addresses in more detail than in the Core Strategy how planning applications are assessed and impacts managed. Others meanwhile may include these policies within their Core Strategy. 1.12 Supplementary Planning Documents (SPD)

These optional documents may be produced to provide additional detail about policies within the Development Plan Documents. The Government’s Planning Portal highlights that SPDs “may take the form of design guides, area development briefs, a master plan or issue-based documents [and] can use illustrations, text and practical examples to expand on how the authority's policies 4 5

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can be taken forward”. Design guides, for example, could provide a useful opportunity for the council to ‘design out’ common problems within development proposals like avoiding creating alleyways that can attract graffiti, littering and flytipping and encourage changes in behaviour by providing easy access to recycling and composting facilities. Other examples include using SPDs to provide more detail on the council’s use of planning obligations (section 106 agreements) or policy on air quality and development. 1.13 It is worth remembering that Planning Policy Statement 1 states that “planning

policies should not replicate, cut across, or detrimentally affect matters within the scope of other legislative requirements, such as those set out in building regulations for energy efficiency”. The Local Government Association’s ‘Planning policies for sustainable building: guidance for Local Development Frameworks’ (http://www.lga.gov.uk/lga/aio/179453 page 10) provides a useful table to demonstrate the interface between planning and building regulations, and highlights grey areas/overlap between the two regimes. Whilst it identifies that the Department for Communities and Local Government (CLG) “discourage planning policy going beyond building regulations”, the guidance acknowledges that “the planning process has an ability to provide early leverage in the design…and where there is overlap, can require exceeding the standards when there is a clear proven need based on sound local evidence”. The document goes on to provide sample text and references to provide potential content for DPDs and SPDs, including the areas of sustainable drainage, light pollution and mitigation of construction impacts. 1.14 Local Development Scheme (LDS)

Councils must produce a ‘project plan’ for the production of the local development documents (Development Plan Documents and Supplementary Planning Documents) showing which documents will be produced, in what order and providing a timetable for production of these and all documents that make up the LDF. 1.15 Statement of Community Involvement (SCI)

Councils must produce a statement that follows the Government’s principles on community engagement in planning – i.e. ‘appropriate’, ‘from the outset’, ‘continuous’, ‘transparent and accessible’ and ‘planned’. The SCI should show how and when the LPA intends to consult local communities and other stakeholders as they develop documents within the LDF. 1.16 Annual Monitoring Report (AMR)

Councils must produce an annual progress report for the Government on the timetable laid out in the Local Development Scheme and progress on the policies and targets laid out in local development documents. 1.17 Local Development Orders and Simplified Planning Zones

The LDF may contain orders to extend “permitted rights” for certain forms of development and/or identify zones where specified planning permission operates

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because the council wishes to stimulate development and investment, and hence a formal application or the payment of planning fees is not required. 1.18 Finally, Development Plan and Supplementary Planning Documents within the

LDF also need to go through a Sustainability Appraisal. 1.19 Not sure about the value of getting involved in the process of developing

these documents? Imagine a developer appeals your authority’s decision. A representative from the environmental protection service is asked to appear as a witness, where you provide evidence about the impact of the development on air quality or another key environmental priority, and how this underpins your council’s planning decision. The Planning Inspectorate may question whether air quality is really a priority for your council if it doesn’t feature in your local planning policies. 1.20 Shortly we will look at the process that different types of LDF documents must go

through before they can be formally “adopted” by your council, and highlight opportunities for Environmental Protection Services to get involved in these processes. Before we do, take a look at the case study below, which provides a comprehensive example of how local planning policy underpins the work of environmental protection, and demonstrates the outcomes that you too could achieve. Mid Devon District Council: planning for better air quality A partnership approach between environmental protection and planning has been at the heart of Mid Devon’s efforts to improve air quality since 2005. The council has two Air Quality Management Areas (AQMAs) in Cullompton and Crediton. At an early stage they identified the need for consistent criteria for judging the air quality impacts of new developments and provide a transparent, effective mechanism to secure mitigation measures/funding. Involvement in the Core Strategy Recognising the potential air quality impacts of large new housing and commercial developments, the Environmental Protection team at Mid Devon sought to engage their colleagues in Forward Planning early in the Local Development Framework development process. They commented on emerging drafts of the core strategy document in relation to not only air quality, but also contaminated land, noise (including from wind farms), climate change and other key public health concerns. This included sharing evidence from the latest - Air quality review/ assessment reports/Air Quality Action Plans (whether a draft or adopted version), - contaminated land strategy, - noise strategy, and - other local or regional EP policies, to persuade planning to make their LDF policies consistent. The robust air quality evidence collected by EP, and leading to the AQMA declaration, was sufficient to highlight the problem to planning and secure policies within the Core Strategy, as well as influencing the distribution of development across the district. For example, the policy on Crediton specifically identifies the need to: “Promote a reduction of traffic on congested streets within Crediton and improvements to local air quality by enhancing walking and cycling opportunities around the town and implementing air quality action plan initiatives including the provision of a link road between the A377 and Lords Meadow Industrial Areas.”

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“Ensure developments within, adjoining or affecting the Air Quality Management Area provide measures to meet air quality objectives, taking full account of cumulative development impacts and based on air quality assessments giving realistic “baseline” and “with development” scenarios.” Environmental protection were able to provide support for retaining these policies as part of a ‘sound’ Core Strategy document through providing written/verbal evidence during the formal ‘independent examination’ of the document. The planning inspector subsequently stated that “there is a serious air quality problem (in Crediton)… the approach of the Core Strategy to give weight to this concern and explore developer contributions ,… is the appropriate way forward”. The Core Strategy was successfully adopted in 2006. Securing a Supplementary Planning Document on Air Quality and Development Environmental protection officers were also able to recommend to their planning colleagues at an early stage of the LDF process that an SPD on air quality and development was necessary to elaborate on the council’s core planning policies. The dialogue between EP and planning continued throughout 2006-2008 as they jointly produced the SPD. They shared relevant guidance from both professions and examined other councils’ planning policy documents to negotiate an SPD to benefit air quality and recognise the link between air quality and climate change, whilst balancing the demand for development in the district. Its creation gives greater transparency to developers on:  the importance the council place on air quality as a ‘material planning consideration’;  when an Air Quality Assessment will be required and guidance on the process of undertaking these;  the council’s approach to using planning conditions and section 106 agreements in relation to air quality; and  location specific policies, for example development in Crediton. The council was also keen to include within the SPD a transparent and justifiable formula to calculate contributions secured from developments through 10-year planning obligations under section 106 of the Town and Country Planning Act 1990. The approach adopted in-house by Mid Devon was to calculate a standard charge required for certain developments that was scaled to reflect the varying impact of different types of developments. The impact was considered in terms of the number of vehicle trips that the development was likely to create. The funding formula also incorporated a factor within the calculation to consider the ability of the developer to contribute. Together this formula allows EP to secure contributions to directly implement action plan measures whilst allowing planning to ensure developments remain viable. It also provides clarity and consistency for developers. Working towards an Allocations and Infrastructure Development Plan Document Whilst the awareness of existing and emerging air quality problems during the development of the Core Strategy influenced the distribution of development, the council has opted to back this up with an additional Development Plan Document on “Allocations and Infrastructure” (AI DPD). Environmental protection has again been active in commenting on the emerging draft through identifying the environmental constraints and/or mitigation opportunities of specific proposed development allocation sites e.g. looking at the on/off-site impacts to air quality, contaminated land, noise and other nuisance issues, and opportunities for implementing Low Emission Strategies. Where insufficient evidence has been available, the two services have jointly commissioned work, for example a report to examine carbon emissions, opportunities for renewable energy and implementing low emission strategies for allocation sites. Taking evidence from the jointly commissioned work, requirements to provide low emission strategy assessments have been applied to all major allocation sites alongside carbon reduction polices. These are designed to ensure that local air quality and climate change are considered at the master plan stage and avoid piecemeal assessments at a later stage from individual applications. This ensures the overall, cumulative impact of major development schemes on climate change and local air quality is taken in account and enable mitigation/key infrastructure to be provided where appropriate, maximising the benefits of economies of scale. The AIDPD also proposes that the authority adopt the Community Infrastructure Levy (CIL) across the district whereby a consistent levy will be applied to relevant development types to provide for a range of infrastructure wherever it is needed in the area. The Go to: Contents

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proposed CIL includes for the provision of air quality infrastructure, including key measures within the authorities adopted Air Quality Action Plans. The AIDPD is currently under examination by the Planning Inspectorate (April 2010) so may be subject to change. Forward Planning and Environmental Protection have continued to work together alongside their County Council transport planning colleagues in the lead up to, and during, the Examination process. This has included EP input into key policy position statements, providing up-to-date evidence on air quality within the district and EP officers acting as witnesses for the authority at the Examination hearings with regard to the proposed air quality/low emission strategy policies and the CIL. Turning policy into practice Mid Devon have been able to apply their clear policies on air quality and development when agreeing to a new development by a large supermarket chain. Using a section 106 agreement they have secured:  An upgrade the town bus service to increase its frequency, and to serve the railway station;  Refurbishment of the railway station using the s.106 criteria;  Contributions of £1.2m to the redirection of traffic away from populated parts of the Crediton Air Quality Management Area; and  The production of a travel plan for the whole site – including an on-site development of offices, and a family pub/restaurant in addition to the store. Find Mid Devon’s LDF at: http://www.middevon.gov.uk/index.aspx?articleid=1885 and more about developing a funding formula at: http://www.lowemissionstrategies.org/downloads/Simon%20Newcombe.ppt

1.21 Creating Development Plan and Supplementary Planning Documents

As you’ll see from the case study above, getting involved early at the ‘evidence gathering’ stage is essential when developing DPDs and SPDs. However to do this it is vital to understand the long process that these documents must go through before they can be officially adopted. Typically an SPD takes a year to produce and adopt, whilst DPDs take around a minimum of 3 years, depending upon their complexity. 1.22 Broadly speaking the different stages of development can be summarised as

follows:

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Evidence Gathering DPDs

SPDs

Identifying local issues and options Develop draft policies and proposals

Formal consultation & submission Independent examination Adoption

Prepare & publish a draft Review representations & finalise document Adoption

1.23 Both the preparation of Development Plan Documents and Supplementary

Planning Documents start with an ‘evidence gathering’ stage. This provides all interested stakeholders with the opportunity to lay their arguments and evidence on the table in the hope that these will be identified as key local issues that will need to be addressed through the Core Strategy, other DPDs and SPDs, and hence will frame future planning decisions. As the Planning Inspectorate’s ‘Local Development Frameworks: Lessons Learnt Examining Development Plan Documents’ outlines “there is an onus on the consultees to seek to engage early and effectively”6. Planners may refer to the “front loading” of the LDF process, which essentially means that strong emphasis is placed on representations being made and evidence offered to your council’s strategic planners as early in the preparation process as possible. For DPDs it is essential that this happens before a draft document is submitted to the Secretary of State for examination by the Planning Inspectorate. As we will explore below, there are multiple opportunities for environmental protection services and other stakeholders to comment on a draft documents as it emerges but before it is formally submitted to central government. Local authority planners are expected to only submit a DPD that they believe to meet the criteria for a ‘sound’ document. Therefore you are unlikely to succeed in getting additional evidence taken into consideration at this stage and you may undermine a substantial amount of work already done by your planning colleagues by implying that the submitted version is ‘unsound’. 1.24 Next steps to develop DPDs

Evidence gathered at the start of the process is then collated to identify key local issues and a report produced to outline different ways to address these through planning before developing draft policies and proposals. Revisions and refinements will subsequently be made to the draft DPD and once complete the 6

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draft DPD will be published for formal consultation before being submitted to the Secretary of State. 1.25 Regulation 25 of Town and Country Planning (Local Development) (England)

(Amendment) Regulations 2009 provides flexibility about how many consultation stages an individual council wishes to undertake. The regulation requires planners to consult the relevant “specific” and “general” consultees on the topic and possible content of the proposed DPD. The list of “specific” consultees includes the Environment Agency and Natural England but there is obviously no explicit reference to local authority environmental protection services as an internal department. Planners must also consider whether it is appropriate to invite representations from local residents and businesses. 1.26 Once a draft DPD has been submitted the Planning Inspectorate will appoint an

inspector to undertake an ‘independent examination’ to test the soundness of the document and the preparatory processes it has been through. Using the tests laid out in PPS 12, the inspector will be looking at whether: 

the legal requirements of the Planning and Compulsory Purchase Act 2004 have been met: this includes whether the document has regard to national policy and the local Sustainable Community Strategy, has been subject to a Sustainability Appraisal and follows the Local Development Scheme and Statement of Community Involvement;

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the documents are “sound”: several tests are used to assess if the document is justified, effective and consistent with national policy. In this context “justified” requires the document to be “founded on a robust and credible evidence base” and “the most appropriate strategy when considered against the reasonable alternatives”, and “effective” requires the document to be deliverable, flexible and able to be monitored.

1.27 When submitting environment-related arguments and evidence at the front

end of the preparation process and perhaps appearing at a hearing session, it will be useful to bear in mind the tests above that the planning inspector will be applying. The Inspector may hold short, informal round-table discussions or hearing sessions as part of the examination, as well as seeking written representations. Stakeholders with an interest in the document being examined have the right to be heard by the planning inspector but only if they are seeking a change to the document. Environmental protection officers wishing to make representations in support of your council’s document can only do so if invited to speak to the inspector7. 1.28 The examination will be concluded by the inspector producing a ‘binding report’.

This report can recommend changes that the local planning authority must make but these changes must meet the soundness test and the inspector can only recommend changes to the extent that “he/she can be sure the plan as changed would not be vulnerable to challenge on the grounds that the proper procedures 7

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had not been followed [in particular the sustainability appraisal process and proper community involvement]”8. The inspector will not make changes in order to make the plan ‘sound’ and instead if they have concerns about the plan then they can find it ‘unsound’ for adoption. Assuming the document is held to be ‘sound’ and the specific recommended changes have been made then the authority should move to adopt that document, implement the delivery framework and start monitoring its effectiveness. 1.29 UPDATE: It is worth being aware that the ‘binding report’ stage may shortly

change if the proposals outlined in the Conservation ‘Open source planning’ Green Paper go ahead. This outlines plans to “abolish the power of planning inspectors to rewrite local plans – so long as they comply with national standards, are sensibly related to neighbouring communities, and have been developed by a fair and proper process, they will be approved"9. 1.30 Next steps to develop SPDs

Meanwhile, a much shorter process is used to prepare SPDs. This process moves straight from ‘evidence gathering’ to the ‘prepare and publish a draft’ stage. As the draft SPD provides more details on policies contained within the DPDs (particularly the Core Strategy), it is subject to public consultation. No independent examination of the SPD takes place but instead the LPA will publish a summary of comments received through the consultation and identify how these will be dealt with. Once this stage of ‘reviewing representations and finalising the document’ is complete it is up to the authority to decide whether to adopt the document. Once adopted the authority will publish a formal notice to show that this is now an official document within the LDF. Wigan Metropolitan Borough Council: Tips for developing SPDs On 20th September 2007, Wigan MBC adopted the ‘Development and Air Quality Supplementary Planning Document’, having taken part in phase one of the Low Emission Strategies Partnership (LES). Reflecting on the development of the document, their advice for successfully negotiating this process within your own authority includes: 

From the beginning ensuring you work with other services, e.g. highways, cycling, sustainability, to sort out what you will be requiring from developers as there are bound to be overlaps and requirements need to be as specific as possible.

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It may be a good approach to tackle the impact of emissions on air quality and climate change together in one SPD. This will allow you to select policies and measures which provide mutual benefits, balancing and deciding on impacts where there is some conflict.

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If you are seeking contributions to mitigate/off-set impacts on air quality of the development, make sure you have a clear methodology and be clear how money will be used through having a costed implementation plan.

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Be mindful of different planning scenarios when drafting the SPD and the impact this may have on requirements from developers, e.g. outline applications, detailed applications, applications for derelict sites, applications for sites with current use, extensions to existing sites.

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When negotiating requirements you will need to be mindful of the burden placed on development and issues of viability. Hence a joint negotiation team, including a planner and air quality/emissions specialist, is desirable.

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Recognise that quantifying and balancing the benefits of emissions mitigation can still be difficult; look out for advice in the LES Toolkit, due to be released in late 2010.

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Consider taking a regional or wider approach to adopting policies and required measures.

1.31 Sustainability Appraisal (SA) & Strategic Environmental Assessment (SEA)

DPDs: As well as following the process above, all new or revised DPDs must go through a sustainability appraisal (SA), and the European Strategic Environmental Assessment (SEA) Directive10 requires an SEA to be undertaken too. This is typically incorporated into a single process that runs alongside the development of the DPD with the aim of ‘promoting sustainable development through the integration of social, environmental and economic considerations’ (CLG) when producing these planning documents. 1.32 SPDs: The Planning Act 2008 removed the requirement for most SPDs to go

through the SA/SEA process “because they do not normally introduce new policies or proposals or modify planning documents which have already been subject to sustainability appraisal. However, a supplementary planning document may occasionally be found likely to give rise to significant effects which have not been formally assessed in the context of a higher-level planning document”11. Examples of possible instances where SPDs may require an SA/SEA can be found at www.pas.gov.uk/pas/core/page.do?pageId=469626.

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1.33 In relation to environmental concerns, the SEA Directive requires assessment of

“the likely significant effects on the environment, including on issues such as biodiversity, population, human health, fauna, flora, soil, water, air, climatic factors, material assets, cultural heritage including architectural and archaeological heritage, landscape and the interrelationship between the above factors. These effects should include secondary, cumulative, synergistic, short, medium and long-term, permanent and temporary, positive and negative effects” and “the measures envisaged to prevent, reduce and as fully as possible offset any significant adverse effects on the environment of implementing the plan or programme”. Whilst government guidance points to the possible relevance of Local Air Quality Action Plans when undertaking appraisals of LDF documents, there may be other evidence that is routinely collected by environmental protection officers that planners are unaware of and could help influence the development of DPD and SPDs. Look out for Sustainability Appraisal workshops run by your authority to appraise the Local Development Framework and take your evidence and expertise along.

The relationship between spatial planning & other local documents 1.34 In summary Local Development Frameworks are ‘spatial planning’ documents,

which broadly means they should look “to deliver positive social, economic and environmental outcomes, and [spatial planning] requires planners to collaborate actively with the wide range of stakeholders and agencies that help to shape local areas and deliver local services” (PPS 12: Local Spatial Planning). However these are by no means the only documents that help to shape the local area. The LDF will also need to help deliver your area’s Sustainable Community Strategy, Local Area Agreement and fit with your Local Transport Plan. The diagram below illustrates broadly how planning links into the bigger corporate delivery picture:

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Strategies

Priorities

Delivery

Include… Include…

Local Strategic Partnership priorities

Sustainable Community Strategy

National Planning Policy

LDF Core Strategy

Planning decisions Local Area Agreements

1.35 Sustainable Community Strategy (SCS): The Sustainable Community Strategy

is perhaps the most important document in relation to the long-term plans for improving the quality of life and services locally, as well as making contributions towards sustainable development in the UK. Your council will lead in developing and agreeing the SCS with the Local Strategic Partnership (LSP), who represent the public, private, voluntary and community sectors. The objectives identified in this strategy lay out the foundation of what needs to be achieved in the area. 1.36 Local Area Agreements (LAAs): Meanwhile both Local Area Agreements

(LAAs) and the LDF provide local delivery mechanisms for achieving the SCS vision. Forward planners will therefore need to ensure that the LDF documents reinforce the vision laid out in the SCS and help to deliver the outcomes agreed within the LAA (PPS 12, para 1.6). 1.37 Local Transport Plan (LTP): The Department for Transport (DfT) defines the

role of Local Transport Plans to “set out the authority's local transport strategies and policies, and an implementation programme”. The third round of LTPs (LTP3) will need to be in place by April 2011. In two-tier areas the county council will lead as the highways authority for the area however, as district councils control parking controls and planning decisions, they too have influence over the local transport infrastructure and joint working will be essential. In some areas, district authorities may also have been given the opportunity to develop substrategies/action plans to fit with the county-wide LTP. 1.38 Transport planners will need to develop LTPs with reference to DfT’s 5 goals for

‘Delivering a Sustainable Transport System’: (i) support economic growth, (ii) tackle climate change, (iii) contribute to better safety security and health, (iv) promote equality of opportunity and (v) improve quality of life. These national goals replace the “shared priorities’’ that were a feature of LTP2, one of which Go to: Contents

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was a shared priority on air quality. These shared priorities were removed with the intention of giving councils more flexibility to set their priorities based upon local circumstances. The DfT guidance on LTP3 highlights that “these priorities accessibility planning, congestion, air quality and road safety - will continue to be essential elements of LTPs’’ and that “integrating Air Quality Action Plans with LTPs is strongly encouraged”. However having a specific shared priority on air quality provided a useful lever when negotiating previous LTPs to ensure environmental protection professionals were involved and air quality was seen as high up on the transport planning agenda. Its removal makes it even more important for air quality officers to know who their local transport planning contacts are and the timetable for negotiating the next LTP in order to proactively offer relevant air quality evidence and demonstrate its relative importance in the context of the five new goals, particularly given the often complex relationship between tackling climate change and reducing air pollution. 1.39 LTPs have a close relationship with LAAs as well as LDFs. Successful transport

plans can help to not only meet LAA transport indicators but also non-transport related indicators such as National Indicator 186 on climate change and National Indicator 194 on air quality. Since the Local Transport Act 2008, authorities are now free to review and replace their LTP whenever they feel it is appropriate rather than being required to produce a new LTP every 5 years. This enables councils to determine their own timetables and tie their transport plans in more closely with their wider local planning visions. For example, Cheshire West and Chester identifies that “As the Local Development Framework sets out our development plans and aspirations up to 2026 we propose to also use this date for the period to be covered by the LTP as well. By doing this we hope to be able to better integrate our land use and transport planning activities’’13. Greater Manchester: LTP Air Quality Working Group In 2004, as part of the development of ‘LTP2’, Greater Manchester created an ‘Air Quality Working Group’ to integrate the implementation of the Air Quality Action Plan within their new local transport plan. The group was made up of practitioners in air quality, planning, transport and sustainability officers from each of the district authorities. The role of the group was to improve co-ordination and partnership working between these stakeholders and ensure that expertise on air quality issues is shared with transport planners. Membership of the group expanded in the LTP2 period to include officers from the Greater Manchester Passenger Transport Executive, Highways Agency and Manchester Airport. The group reported to the LTP2 Steering Group and the Greater Manchester Air Quality Steering Group. Since this fantastic example of joining-up thinking and expertise in the pursuit of coherent local policies, the 10 Greater Manchester authorities have launched joint detailed assessment work that brings together data from two projects: 1. a pollutant dispersion modelling project, which is using combined outputs from point source data and traffic modelling, and

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2. the Greater Manchester Strategy Planning Model project, which is modelling land use and transport impacts of the combined Greater Manchester Local Development Frameworks. This assessment work has created a practical platform for collaboration in data sharing and analysis by environmental health professionals, transport planners and land use planners, which has increased the level of understanding and commitment across all the professions.

Influencing planning policy 1.40 From the overview of the planning policy hierarchy above it is clear that using the

planning system to protect and enhance the environment is already picked up within a number of the PPSs and PPGs. Meanwhile there are a number of important opportunities throughout the process of developing national, regional and local policy documents for environmental protection services to contribute opinions and supporting evidence. However it is also important to acknowledge that environmental protection represents just one of a myriad of aims, and associated targets, for sustainable development that planners are expected to balance by the public, business and politicians. Being aware of what these other priorities and targets are is useful to allow you to frame your arguments to find win-wins and negotiate compromises. 1.41 For example, the provision of housing and facilitating economic development

continue to be important political drivers, both locally and nationally. This is evident within the latest Local Area Agreements where NI 154 on achieving a net increase in providing additional houses is the joint second most popular indicator, followed closely by NI 155 on the number of affordable homes delivered. Meanwhile NI 171 on increasing the registration rate of new businesses was picked up by over half of the 152 LAA localities. 1.42 To help deliver some of these LAA aims through the planning system, the

national Core Output Indicators14 that both the responsible regional authority and Local Planning Authority must report on annually have been closely aligned with these National Indicators. Monitoring the achievements of their Regional Strategy and Local Development Framework includes reporting on:  the total amount of additional employment floor space completed (‘BD1’);  the net additional dwellings delivered (‘H2’); and  the gross affordable housing delivered (‘H5’). 1.43 The expectation placed on planners to help deliver on these issues is extremely

high and, like environmental protection services, planners must use their professional judgement to balance the differing priorities of multiple stakeholders against a background of limited resources and time. These mutual challenges, alongside the shared objective of improving the local area for the sake of those who live, work and visit, provide a common ground upon which both professions can build successful working relationships through respecting the pressure that each service is under. ‘Win-win’ opportunities for both planning and 14

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environmental protection aims are clearly present. For example, amongst the Core Output Indicators on ‘Housing’ and ‘Business Developments’ are two indicators which assess the amount of new dwellings and employment floor space completed on previously developed land (H3 and BD2)15. Given the complexity of Part 2A of the Environmental Protection Act 1990 for determining contaminated land and the initial expenditure required before local authorities have access to government grants, remediation via planning is generally the more favourable option for EP too. 1.44 Inevitably, delivering housing and business developments, and the associated

transport infrastructure, won’t always sit comfortably with the aims of environmental protection on air quality and nuisance. Despite references to the importance of air quality and noise considerations within national planning policy, the three ‘Environment Quality’ core output indicators for monitoring regional and local spatial planning focus on flood and coastal erosion risk management, the effects on biodiversity habitat and opportunities for renewable energy generation. Negotiating a successful compromise therefore requires a positive yet realistic outlook. Focussing purely on what your service can get out of the planning system and doggedly pursuing environmental goals without consideration of the many other aims that planners are juggling may not be the best use of your efforts. As with any type of persuading and influencing, don’t simply identify problems. If you have reservations about a policy you are more likely to succeed if you can offer alternative solutions that would ensure development remains viable to achieve key planning aims whilst also supporting environmental protection work. This type of engagement with the planning process will help to develop your service’s reputation as a valuable stakeholder amongst planners and developers alike. 1.45 Drawing upon the experiences of other authorities and relevant guidance

provides a useful starting point to identify alternative solutions that could be incorporated within strategic planning policies, and hence shape future development management decisions. For example: 

The Low Emissions Strategy Partnership have documented how to mitigate the ambient air impacts of transport through creating low emission strategies in their good practice guidance. This has been adopted as official guidance by Defra and CLG. (www.lowemissionstrategies.org/downloads/LES_Consultation_Draft.pdf)



Environmental Protection UK’s Development Control: Planning for Air Quality guidance outlines how to evaluate the significance of the air quality impacts of an individual development and provides suggestions/options for mitigation (www.environmental-protection.org.uk/aqplanning/)

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Annex 2 of PPS 3 on Housing defines ‘Previously-developed land’ (often referred to as brownfield land): http://www.communities.gov.uk/planningandbuilding/planning/planningpolicyguidance/planningpolicystateme nts/planningpolicystatements/pps3/ Go to: Contents

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

Biomass and Air Quality Guidance for Local Authorities, jointly produced by LACORS and Environmental Protection UK, provides advice on the assessment, management and mitigation of biomass emissions, and is accompanied by an information leaflet aimed at explaining the impacts to developers (www.lacors.gov.uk/lacors/ViewDocument.aspx?docID=21913&docType=C) 

Examples of guidance available for developers on contaminated land (www.lacors.gov.uk/lacors/ViewDocument.aspx?docID=20912&docType=C)

1.46 Planners may naturally resist suggestions that challenging policies on key

environmental protection issues should be adopted within your authority’s DPDs and that separate SPDs are subsequently required to expand these topics. They may have concerns about discouraging businesses from developing in the area and losing out to neighbouring authorities, as well as recognising the resource intensive nature of creating each LDF document. You may want to ask your planning colleagues whether they have explored opportunities to collaborate with other LPAs to prepare LDF documents, in line with Government guidance. The Planning Advisory Service provides useful examples within their ‘Let’s stick together’ document of planning authorities who are already collaborating, particularly to develop their Core Strategies. Working together in this way provides an opportunity to develop common policies with neighbouring authorities, creating a level playing field and sharing the workload. Suffolk: developing a county-wide policy on “Air Quality Management and New Development” Suffolk, a two-tier county with eight local authorities, has a number of AQMAs across the county. Ipswich Borough Council proposed the development of a county-wide policy to rationalise approaches to joining up planning and air quality matters. The Suffolk Air Quality Management Group agreed that this would be useful and hence a small working group of four officers was set up to develop a draft document. Work has been undertaken to develop text with the primary aims of (a) maintaining and, where possible, improving air quality, and (b) ensuring a consistent approach to local air quality management and new development across the county by:  identifying circumstances where an air quality assessment would be required to accompany an application;  providing guidance on the requirements of the air quality assessment; and  providing guidance on mitigation and offsetting of impacts. Agreement on the content was reached fairly quickly with the draft being based on the NSCA Development Control: Planning for Air Quality 2006 Update. Work was delayed to allow for the content of the new EPUK Development Control: Planning For Air Quality (2010 Update) to be included. The draft has been prepared in consultation with the Suffolk Air Quality Management Group, the Suffolk Development Control Officers Group, the Suffolk Chief Environmental Health Officers Group, climate change officers, the Suffolk Sustainability Appraisal Group, and an environmental legal

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advisor. A full Sustainability Appraisal has also been carried out by Suffolk County Council’s Planning and Performance Team. Advice from planning officers within the county was that an official Supplementary Planning Document (SPD) would carry more weight than a formal guidance document, and therefore the group are working hard in the hope that the text will be formally adopted by all of the eight local authorities in Suffolk as a “Supplementary Planning Document, Air Quality Management and New Development 2010” to form part of their Local Development Frameworks. A lesson learned from the project, however, is the need to ensure that all policy planners in the region are onboard from the start to make this happen. Early involvement is important to avoid procedural questions being raised further down the line on the robustness of the document, and ensure that policy planners across the country have an agreed interpretation on the process that must be followed to meet the requirements for an SPD. A formal consultation exercise is about to start, which is being led by Suffolk County Council on behalf of all of the local authorities, and a key challenge here is putting together the list of consultees to comply with the requirements of the eight local authority planning teams and their over-arching policy documents. If you are thinking of developing a similar county-wide SPD, it is recommended that you get as many parties around the table from the offset and then communicate with them directly as the project progresses. This will require persistence and patience! Try every avenue to get a response, from bottom up and top down. Even if you receive an encouraging response from one officer within a council don’t assume that they have necessarily cascaded this information to other relevant officers within their council or amongst colleagues in neighbouring authorities. You will need to check with all of the local authority planning officers, in both Development Management and Planning Policy, that they are all agreed and happy as the document is developed. 1.47 However if resources mean you can’t currently secure an SPD then a

possible interim solution could be for environmental protection to produce some guidance on air quality and planning that will be of use to both developers and planners alike. Whilst not an official piece of local planning policy against which applications will be tested to ensure consistency with its requirements, this type of guidance document can be useful to emphasise that air quality is still a ‘material planning consideration’, and outline the expectations of environmental protection when assessing the impact of a proposal on local air quality. Take a look at the guidance produced by Bristol City Council, for example: http://www.bristol.gov.uk/ccm/content/EnvironmentPlanning/Pollution/air-quality-and-planning.en. As ever, when producing any guidance it is good practice to ‘user test’ these resources with a few members of your intended audience to see if they can understand them easily and find them helpful. Keep in mind that environmental protection services have excellent technical expertise in areas like air quality but planners cannot be expected to be experts in all the different areas that they are being lobbied on by different stakeholders. Local Government Regulation has produced a similar guide on ‘Environmental Go to: Contents

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Regulation and Planning: A Guide for Planning Professionals’ to help provide an overview of your work and a glossary of environmental terms. It is still worth thinking about your use of language to avoid unnecessary and unexplained jargon or acronyms. Consider whether the evidence you are putting forward could be easily understood and interpreted by a lay-person. Numerical evidence and charts might require a brief commentary to highlight their significance. In addition, it is useful to be aware of the balance that planners need to strike between demonstrating a policy is “justified” whilst recognising that “one of the aims of the new [LDF] system is to produce concise documents”16. It might be worth chatting informally with your strategic planners about what level of detail they are typically looking for and how best you can present your evidence to make it accessible for them and potentially useful as part of the “robust and credible evidence base” they are required to establish. Also consider whether they could benefit from your monitoring of air quality and mapping of contaminated land to help monitor the Core Strategy and input into the Annual Monitoring Report. As the saying goes, 'monitor once, use many times'. Warrington Borough Council: disseminating knowledge on contaminated land Recognising that the contaminated land regime can be both complicated and easily misunderstood or overlooked by relevant departments within the authority, Warrington’s environmental protection service took the proactive step of inviting internal colleagues and selected external partners to a half-day seminar on the subject. Using local case studies, the team provided planners and other officers with an overview of how contaminated land is identified and determined, highlighted the specific implications of contaminated land for individual council services, outlined what expertise their service provides, managed expectations about things it can’t do, and demonstrated links between this work and wider corporate priorities. Moreover, in a single session they were able to reinforce the need to consider contaminated land early in the processes and the result has been the development of joint working procedures with both planning and building control to ensure this happens. 1.48 Finally, both services share the challenge of finding the resources to interface on

planning issues against a background of the ever-present drive to deliver more for less. Investing in working together to develop a Local Development Framework that sets a single clear policy on the environmental standards required from developers has the potential to save future resources for both services through  avoiding the need to negotiate these issues from scratch as part of each individual planning application;  mitigating the potential for future legal challenge; and  reducing requests for service (for example nuisance complaints from the public) and reserving environmental enforcement powers as a backstop to achieve compliance and protect the environment, not a starting point.

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Furthermore, joining up to provide transparency, consistency and a level playing field for developers has the potential to speed up the planning process and have a positive reputational effect for the area as a good place to develop.

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Part 2: Development management Turning policy into quality development 2.1 Fundamental to the work of development planners is the work already undertaken

by their colleagues in forward planning to develop a strategic vision for local development in the form of the Local Development Framework (LDF). The LDF, particularly the Development Plan Documents, set out the criteria against which decisions on whether to grant or refuse planning permission are assessed. This is why our planning system is described as “plan-led”, with LDFs making planning decisions more predictable. Section 38(6) of the Planning and Compulsory Purchase Act 2004 states that "If regard is to be had to the development plan for the purpose of any determination to be made under the Planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise". Therefore ensuring your council’s LDF sets out a clear policy on key environmental issues will ensure that developers are forewarned of the council’s expectations before they submit an application and help to prevent appeals, and disputes over planning permissions and conditions. 2.2 If a developer’s proposal is consistent with the LDF, planning law creates a

presumption that planning permission will be granted, subject to any ‘material considerations’ to the contrary. ‘Material considerations’ are not currently defined in statute law; however case law has developed to identify things that are and aren’t material considerations. For example, whilst air quality, noise, odour, light pollution and risk of flooding are just some of the issues considered to be material considerations, problems with noise, dust, etc arising from the construction period of any development work are not, as conditions can be used to mitigate adverse impacts during this period. Neither are matters controlled under Building Regulations. 2.3 Even if a material consideration is identified it remains up to those considering the

application to use their professional judgment to consider how much weight should be given to the material consideration(s) when deciding whether to grant or refuse planning permission. Consequentially any council service with an interest in planning will have lost a vital opportunity to influence local planning decisions if they only get involved at the development management stage and rely solely upon ‘material considerations’ arguments rather than inputting into the strategic vision against which each application is tested.

Development control or development management? 2.4 Development planners (or development control/management officers) are a

specific type of planner who focus on site-specific applications for planning permission to develop new buildings, make significant changes to existing buildings and/or make changes to the local environment. Their role is to assess planning applications, consult local people on proposed developments, advise developers on desirable changes to the proposal, set and enforce planning conditions where permission is granted. Go to: Contents

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2.5 The term “development control” is increasingly being replaced by the new title

“development management”. The Department for Communities and Local Government has recently consulted on a new national Planning Policy Statement on Development Management17, as recommended by the Killian Pretty Review of the planning system. In this consultation the government state that: “The traditional ‘development control’ approach to managing development proposals has focused on processing planning applications and enforcing contraventions, often taking a reactive and cautious approach. To enable each local authority to proactively fulfill their place-shaping role, and to actively promote sustainable development, local planning services need to: • facilitate development opportunities • influence development proposals to achieve quality outcomes and • solve problems to deliver sustainable development proposals”. 2.6 The cultural change from planners “controlling” land-use to prevent the worst

developments, towards planners “managing” places to achieve the best quality developments means the role of a development planner should include features like  Front loading e.g. encouraging pre-application discussions and coordinating advice;  Effective engagement e.g. establishing a culture of partnership working and problem-solving with officers, members, developers, the community and other stakeholders;  Proactive delivery e.g. supporting the implementation of approved developments through only using planning conditions where appropriate, early agreement of planning obligations and effective coordination with other council services, like EP. The Planning Advisory Service provides a more detailed commentary and case studies on what changes to development control mean at: http://www.pas.gov.uk/pas/core/page.do?pageId=296410

Overview of the development planning process 2.7 This flow chart provides an ‘at a glance’ overview of the planning application

process. The following sections explore the different stages within this process, from pre-application discussions through to monitoring of planning conditions and obligations after development has commenced, in order to identify opportunities for environmental protection officers to use their evidence and expertise to positively influence the process.

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Is planning permission required? 2.8 Understanding permitted development rights is an important part of the ‘planning

system’. Certain types of development don’t require an individual planning application to gain planning permission. General Permitted Development Orders outline the types of development that don’t require explicit permission from the council as the Secretary of State has already provided a blanket permission by way of these regulations or if there is a Local Development Order in place. Article 4 of the Town and Country Planning (General Permitted Development) Order 1995 however allows the Secretary of State or local planning authority to issue a

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direction to remove permitted development rights, primarily where the work would affect the character of a conservation area. 2.9 Some domestic permitted development rights have already undergone changes in

response to environmental concerns. For example until recently householders have had permitted development rights to develop their front garden to replace their lawn with hard standing for a private car. However, increased instances of surface water flooding where run-off from the use of non-porous materials was a contributing factor, has led to restrictions being introduced in 2008. Permitted development rights continue to exist if a new or replacement driveway of any size uses permeable (or porous) surfacing, such as gravel, permeable concrete block paving or porous asphalt, or if the rainwater is directed to a lawn or border to drain naturally. However a surface of more than five square metres using traditional, impermeable driveways that do not provide for the water to run to a permeable area will require a planning application19. In relation to non-domestic developments (i.e. offices, industrial buildings, schools, shops, etc), they have also recently been given limited permitted development rights20. 2.10 As part of the ongoing streamlining of the planning process, the previous

Government consulted on further extending permitted development rights. This included some proposals that have caused some concern for EHPs, in particular with regard to noise. As part of the drive to tackle climate change and increase the proportion of energy we generate from renewable sources, the Government proposed to make many micro-generation technologies permitted development. Proposals included an extension of permitted development rights to technology such as wind turbines and air source heat pumps. Permitted development rights were successfully extended to allow homeowners to install solar panels, heat pumps, equipment related to combined heat and power systems, and biomass heating systems however a decision on wind turbines and air source heat pumps was put on hold. At the time of writing the Government is ‘poised’ to make an announcement on new regulations to cover these micro-generation technologies: www.planningportal.gov.uk/england/government/news/archive/2010/july2010/201 0_07_week_3/150710_2.

2.11 The Department for Communities and Local Government also consulted on

extending permitted development to air conditioning units, although due to issues raised including in relation to potential noise problems and conflict with climate change policy, they are reviewing the best approach to take. 2.12 Certain changes of land use also don’t require planning permission. The Town

and Country Planning (Use Classes) Order 1987 and its subsequent amendments groups together similar types of land-use into ‘use classes’. A list of the current use classes and the changes in use class that are permitted without a planning application needing to be made is available from The Planning Portal: 19

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 

www.planningportal.gov.uk/england/public/planning/smallbusiness/bg13co mmontypesofapplication/bg138changeofuse/useclassorder www.planningportal.gov.uk/england/public/planning/smallbusiness/bg13co mmontypesofapplication/bg138changeofuse/changepermitted

2.13 An example of how some land uses can be more easily changed than others

would be a hot food takeaway. This type of premises would fall into the ‘A5’ use class. This land can be changed into a shop (‘A1’), a financial and professional services use (’A2’) or a restaurant or café (‘A3’) without planning permission being required. However land that currently falls into an A1, A2 or A3 use class could not be changed into a hot food takeaway, an ‘A5’ use class, without planning permission. Some land uses don’t fall within any of the use classes and are therefore considered to be ‘Sui Generis’, i.e. a use of their own. No material changes in use are permitted to this type of land without planning permission. Lancaster City Council’s ‘Planning Manual’ Lancaster City Council have long recognised that the work of the two professions is intrinsically linked yet a common language and understanding of each other’s roles does not develop without concerted collaboration. To achieve this they creating a planning manual for internal use by Environmental Health officers, and some joint training for officers in both departments. The manual contains all the basic procedural and reference material that environmental protection officers should need when handling planning issues and when consulted on applications. This includes a handy checklist (building upon previous work by authorities in Kent) to keep officers in environmental protection up to date with the types of premises that fall within each ‘use class’. This ‘aide memoire’ identifies key issues that officers need to be aware of when reviewing applications for this type of development before highlighting the key impacts that they may have on the environment. Rather than simply identify problems, the checklist then highlights examples of controls that could be employed to mitigate these impacts whilst allowing the development to proceed. The council recognises that knowledge of planning, and the associated skills to successfully engage with the planning process, are vital to achieve their environmental aims. Hence the checklist is just one of a number of tools available to support officers. Together these resources (which are due to be refreshed shortly), internal training and on-the-job experience, help ensure the service maintains the standards set out in their very own “Competency Matrix for Environmental Health considerations of Development Control issues”. Furthermore, environmental health officers have also delivered training at planning officer meetings and some jointly agreed guidance on the application of PPS 23.

Pre-application discussions 2.14 Talking to developers before they make a formal application for planning

permission is made has become an increasingly important part of the role of council development management officers since The Barker Review of Land Use Planning (2006), which recommended the increased use of pre-application discussions. This recommendation has since been enshrined within national planning policy, with PPS 1 on Delivering Sustainable Development highlighting Go to: Contents

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that “pre-application discussions are critically important and benefit both developers and local planning authorities in ensuring a better mutual understanding of objectives and the constraints that exist”. Guidance on preapplication discussions, jointly produced by representatives from central and local government and the development and house building industry, highlights that as part of this process “developers want to know the views of all the relevant Council departments and specialist interests. These may include transportation, housing, environmental services, drainage, nature conservation, [landscape], and so forth. Planners have a key role in ensuring that these emerge, as far as possible in an integrated form rather than as a set of contradictory views”21. 2.15 To ensure this happens some councils have already adopted a corporate

“development team” approach, which is led by the lead development management officer or head of planning service to bring together all council services with relevant interests in the site and proposed development to provided coordinated advice on the proposal. Wigan Metropolitan Borough Council: applying the development team approach A corporate ‘Development Initiative Group’ exists at Wigan to oversee the progress of all major developments in the area. This involves officers from across the council (including those working in Economic Regeneration, Planning, Environmental Protection, Transport, Legal and Property Services and Finance etc). The group takes a ‘cradle to grave’ approach, with Environmental Protection having the opportunity to input into the process from the initial proposal through to the completion of the development. Working in this way also ensures environmental protection is aware of major developments that they are likely to be consulted on well in advance. Environmental Protection are also included in teams that are set up specially to deal with an individual major development - often involving the applicant in pre-application discussions.

Purbeck District Council: funding pre-application discussions Charging for pre-application discussions is one way to fund this “development team” approach. Some councils remain concerned about charging even large developers,however Purbeck District Council has successfully taken the decision to charge for all pre-application advice, not just for advice on major applications. This funding ensures that the planning service can remain sufficiently resourced to proactively seek the views of environmental protection officers and others in relation to pre-application enquiries. Purbeck’s Development Control Manager explained that “when it was proposed that Purbeck would charge for all pre-app discussions officers were concerned that there would be a public outcry. However, in practice they have experienced no significant level of complaint about charging for minor and householder development enquiries, even during the recession. The lack of complaints is attributed to clearly communicating the reasons for introducing the charge. This was that the councillors felt that it was unfair to expect residents to meet

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‘Constructive talk: investing in pre-application discussions’ – http://www.pas.gov.uk/pas/aio/39020 Go to: Contents

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the cost of providing development advice to prospective developers who had no connection with the area”. Read the full case study at: www.pas.gov.uk/pas/core/page.do?pageId=515058. 2.16 There is also encouragement from central government, via the organisation

ATLAS (the Advisory Team for Large Applications) who specialise in providing advice to local authorities on planning for large scale development, for using ‘Planning Performance Agreements’ (PPAs). ATLAS’ guidance note describes PPAs as “essentially a collaborative project management process primarily aimed at complex development proposals. Although PPAs can be used for all development projects that fit the Communities and Local Government definition of a major application22, it is recommended that they are most appropriate for unique, complex schemes as PPAs require considerable effort”23. Where a local planning authority (LPA) and the planning applicant decide to enter into a PPA then they will be setting out “a framework in which parties come together to agree how they are going to take a development proposal through the planning process”. Within the PPA the parties will agree a timescale for finally determining the application, with a view to improving the quality of the materials submitted, contents of the proposals and the final decision. Determination of the application will often take longer than the standard 13 week target set out in NI 157 on Processing of Planning Applications therefore under this type of agreement LPAs will instead be monitored against the agreed PPA timescale (PPA programme). Another element of the PPA that will need to be negotiated is who forms part of the ‘project team’. Depending upon the complexity of the project this could be a single development team or a series of task groups and, depending upon the issues involved, there are opportunities for environmental protection professionals to engage in these to contribute to the successful ‘frontloading’ of the planning process for that development.

Validation and notification of planning applications 2.17 When it comes to making a planning application there are statutory national

information requirements for a valid application but the Department of Communities and Local Government’s ‘Guidance on information requirements and validation’24 also encourages councils who haven’t already, to adopt local lists of required information. Unlike previous guidance on information requirements and validation, the current guidance provided by CLG does not provide a list of types of additional information that your local planners may wish to require before validating certain types of application, e.g. assessments on air quality, foul sewage and utilities, land contamination, lighting, noise impact, and ventilation and extraction statements. Instead it lays out five principles and criteria for local list preparation, namely: 22

What is a ‘major application’?: see http://www.pas.gov.uk/pas/aio/25208 www.atlasplanning.com/lib/liDownload/351/080404%20PPA%20Guidance%20Web%20Download.pdf?CFI D=2424552&CFTOKEN=48365481 24 http://www.communities.gov.uk/publications/planningandbuilding/validationguidance 23

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(i) Necessity: All local list requirements should be based on statutory requirements [other than the statutory national requirements], national, [regional] or adopted local policy, or on published guidance which explains how adopted policy should be implemented (ii) Precision: It should be clear what types of development require the provision of particular supporting information. Where appropriate, the LPA should also identify specific areas where the information requirement arises. (iii) Proportionality: The information required is likely to be dependent on the nature and scale of the proposal and the sensitivity of its location. Where possible, the LPA should identify size thresholds below which certain information is not required or where only limited information is required. (iv) Fitness for purpose: It should be clear what information is required to satisfy the requirement – with a strong emphasis on a proportionate approach and succinct documents. (v) Assistance: For each element of the list it should be clear where further information or answers to queries can be obtained.

Local validation requirements for Tyne and Wear The five local authorities across the metropolitan area of Tyne and Wear have worked to create a clear and consistent set of local validation requirements for developers submitting planning applications to the LPAs in Gateshead, Newcastle City, North Tyneside, South Tyneside and Sunderland. Find out more by looking at their guidance document to developers and members of the public on local validation requirements: www.northtyneside.gov.uk/pls/portal/NTC_PSCM.PSCM_Web.download?p_ID=22426 7 To validate or not to validate: planning applications and contaminated land Applications for Planning Permission under the Town and Country Planning Act 1990 are made on a standard ‘1APP’ form and include the following section where the applicant must declare known or suspected contamination, and whether the proposed development is a “sensitive end-use”. The 'help text' from the Planning Portal states that “Sensitive uses include housing with gardens, schools, nurseries or allotments, and consideration should be given to whether the use could be particularly vulnerable to the presence of any contamination”25.

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What should the council do if the developer has not indicated that it is a sensitive end-use even though it is? Many councils will not validate the application in this case and will send the application back. However, it appears that a number of councils still do validate the application. The reason for this seems to be that the person(s) validating applications within the planning service are not always practitioners who are aware of these issues. It may be worthwhile for Planning and Environmental Protection to discuss this point see whether some brief training for such persons could be arranged. The Department of Communities and Local Government’s ‘Guidance on information requirements and validation’26includes the statement that “LPAs are encouraged to ensure that validating officers have been sufficiently trained to identify what information is necessary for the purposes of validation.” (point 26) What should the council do if the developer has not indicated that, for example, the development is on a former landfill or chemical works? Again, some councils will send the application back noting that the development is on such a site and will request such information to be provided before the application is validated. However, this can prove difficult for some councils to manage administratively as those persons validating the applications may well not have access to systems which show where such previous land uses are located. 26

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What should the council do if no desk study is provided with the application? Planning Policy Statement 23, Annex 2 states that for certain developments there needs to be at least a desk study regarding any potential contamination provided with the development proposal: “LPAs should pay particular attention to development proposals for sites where there is a reason to suspect contamination, such as the existence of former industrial uses, or other indications of potential contamination, and to those for particularly sensitive use such as a day nursery or housing likely to be used by families with children. In such cases, it should normally require at least a desk study of the readily-available records assessing the previous uses of the site and their potential to assess the risks and identify and apprise the options for remediation should be required” (PPS 23 Annex 2 Paragraph 2427) It would appear, therefore, that there is a clear legal basis for not validating an application where there is not a phase one study submitted and where the end use is sensitive or there is reason to suspect contamination. Many councils do return the application on this basis to the developer, stating that it is not a valid application and asking for it to be re-submitted with the required information. However, it appears that a number of councils accept the application as valid and then proceed to endeavour to obtain the information. What should the council do if a desk study is provided with the application but the quality is inadequate? Sometimes, applicants will provide a report which is very inadequate, such as a website print out. Some councils may invalidate the application or may validate it but request a desk study to be provided of an acceptable quality. The Department of Communities and Local Government’s ‘Guidance on information requirements and validation’28provides a number of statements on this issue. LG Regulation has noted to the Department that the statements appear to be slightly contradictory in parts. The relevant statements are: “LPA’s… should not use invalidation to prevent the start of the determination period where an applicant has taken reasonable steps to fulfil the information requirements set out on the local list.” (point 27) “In some circumstances the supporting information may be inadequate or its quality may be a concern. These are not grounds for invalidating applications…” point 34) “Notwithstanding the advice in paragraph 34..., local planning authorities occasionally do validation applications on the basis that they consider the quality of the supporting information to be inadequate. In such circumstances, applicants may appeal to the Planning Inspectorate (PINS).” (point 38)

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“Where it is found that an application was not valid because the information provided is wholly inadequate to enable a decision to be made, it reverts to the Authority for consideration. Except where the submitted material is wholly inadequate, such that the proposal is not reasonably capable of being understood, the appeal will be registered and an Inspector appointed. If the Inspector agrees with the applicant’s view that the supporting information has been provided, the application is determined at appeal on its merits.” (point 39) Whilst these statements do not make the situation very clear, it appears that if the council really believes the applicant has provided inadequate information (and has not taken reasonable steps to provide the information requirements), it could invalidate and risk the applicant appealing this decision. It appears that PINS could decide either way. 2.18 Once a valid planning application is made there is no specific duty for

development management to consult environmental protection services. Therefore, in practice, approaches differ across authorities in relation to how environmental protection services become aware of planning applications, which applications they make representations on and the timescales they have to make a response. 2.19 Councils should bear in the mind the recent High Court decision R (Technoprint

Plc / Snee) v Leeds City Council [2010] EWHC 581 (Admin) http://www.bailii.org/cgibin/markup.cgi?doc=/ew/cases/EWHC/Admin/2010/581.html&query=Technoprint &method=boolean where the court found against Leeds council and stated that more information as regards potential contaminated land on a site should have been gained before planning consent was given. The Council had received a Phase 1 report but no Phase 2 report or remediation statement. Despite conditions being added to the planning consent, the Court held that this was not sufficient. The judge stated "In my judgment, it was unreasonable for planning permission to be granted when so many issues relating to potential land contamination were unresolved. I appreciate that solutions can usually be found to overcome problems associated with land contamination. It does seem to me, however, that a reasonable local planning authority would have demanded much more information from the Interested Party before deciding to grant permission rather than grant permission subject to conditions when the extent of any potential problem was simply unknown. To repeat, land contamination was not identified as some peripheral issue in this case; it was identified as one of the main issues for consideration." The Mid-Devon Environmental Protection and Development Control consultation mechanism As both the Environmental Protection and Development Control services use the same module of the same corporate data management systems (CAPS), this presented Mid Devon DC with opportunities for streamlining the consultation process for planning applications. The two services agreed criteria specifying which planning applications EP would automatically wish to be consulted upon. EP was assigned as Go to: Contents

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an ‘automatic consultee’ to relevant applications on the CAPS system. Once the application has been validated and given a DC case officer, CAPS automatically generates an electronic consultation sheet which is sent via email to EP team support. The two services agreed upon the format/template for this consultation sheet, which contains the basic details of the application, the case officer assigned to the application and space under specific headings to input comments on air quality, contaminated land, noise/nuisance, housing standards, sustainability, food and licensing. The template also includes an e-link to the full application and all supporting documents on the internal corporate document management system, with a duplicate link to the application specific page on the ‘Public Access to Planning’ website. The email containing the consultation sheet also includes a standardised consultation deadline, which has jointly been set at 10 working days. On receipt by EP support, the email is forwarded to a preset list of officers for comment with the deadline being inserted into an electronic Outlook diary to prompt reminders and ensure the overall response is completed in a timely manner. All officers can simultaneously access the consultation template and enter their comments under the relevant section, thus speeding up the system. By having the responses arranged under the relevant topic headings and having the individual EP officer responsible for specific comments clearly identified, this assists DC to know who to contact should they need further information or clarification. The system allows EP to easily measure their response performance against the 10 working day deadline, as they have a local performance indicator with a 90% target for making responses within this timescale. In addition, EP and DC have also jointly agreed (and hold) a list of standard paragraphs/conditions each with a unique code. Where relevant, the EP officer can simply insert the relevant code on the consultation sheet or they can choose to input more detailed comments. Overall the system has been beneficial in terms of speed and consistency of process, avoidance of unnecessary paper documentation, quick retrieval, more transparency and an accurate audit trail, and ease of use/progress checking.

‘Outline’ and ‘reserved’ matters applications 2.20 Not all planning applications are ‘full’ applications that include full details on the

proposed use(s) of the land with detailed drawings. A planning application may be made in ‘outline’ form where the developer wishes to establish that in principal development on the land is permitted but leaves approval of “reserved matters” i.e. the layout, scale, appearance, access and landscaping, until a later stage. 2.21 Outline applications are made in order to establish in principle whether

development on that site is acceptable, before the development becomes involved in the expense of preparing detailed plans. This type of application can be made with all or some matters reserved. These matters reserved include: “appearance - aspects of a building or place which affect the way it looks, including the exterior of the development; means of access - covers accessibility for all routes to and within the site, as well as the way they link up to other roads and pathways outside the site; landscaping - the improvement or protection of the amenities of the site and the area and the surrounding area, this could include planting trees or hedges as a screen;

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layout - includes buildings, routes and open spaces within the development and the way they are laid out in relations to buildings and spaces outside the development; scale - includes information on the size of the development, including the height, width and length of each proposed building.”29 2.22 Clearly all of these matters have the potential to influence the environmental

impact of the development, and how this can be mitigated. Within three years of this initial approval (or less if specified by a condition on the outline approval), full details must be submitted to the Council in a ‘reserved matters application’. Development must then commence within two years of the reserved matters being approved. 2.23 Outline applications are becoming less desirable due to the move towards “front

loading” across the planning system, with early engagement and informationsharing becoming features on both strategic planning and development management.

Commenting on Environmental Impact Assessments (EIA) 2.24 European law requires that some developments go through the EIA process to

help the LPA understand the potential environmental impact of the development. This requirement has been transposed into domestic law30, which lays out the circumstances in which developers must compile an Environmental Statement (ES) and what information must be included within this statement. 2.25 Before submitting a planning application the developer may request a “screening

opinion” from the council to ascertain whether an EIA is required or, alternatively, upon receiving a planning application without an EIA the council may determine that one is required and notify the developer. In both instances the developer has the opportunity to dispute the council’s findings and request a screening direction from the Secretary of State. When deciding whether an EIA is required, your council’s development management officers will consider whether the project falls within the two categories of projects specified within the EIA Regulations. Projects listed in “Schedule 1”31 of the Regulation will always require an EIA. Examples include major power stations and road building schemes as well as waste disposal incinerators and chemical works. 32

2.26 Meanwhile projects that fall within “Schedule 2”

of the Regulations may or may not require an EIA, depending upon whether the development is likely to have a

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Guidance Notes for applications for outline planning permission with some/all matters reserved: www.planningportal.gov.uk/uploads/1app/guidance/guidance_noteoutline_application_with_reserved_matters.pdf 30 e.g. the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (‘EIA Regulations’ – as amended in 2008) and other legislation that covers specific types of infrastructure developments like power stations and highways. 31 http://www.opsi.gov.uk/si/si1999/99029305.htm#sch1 32 http://www.opsi.gov.uk/si/si1999/99029305.htm#sch2 Go to: Contents

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significant effect on the environment due to its size, nature and/or location. Schedule 2 provides some indication about criteria and thresholds for requiring an EIA from different types of developments. For example a new abattoir in your area is likely to need to go through an EIA if the area of new floorspace exceeds 1,000 square metres. The Government Circular 02/99 on Environmental Impact Assessments outlines further that “in determining whether significant effects are likely, the location of a development is of crucial importance. The more environmentally sensitive the location, the lower will be the threshold at which significant effects will be likely”. Further ‘selection criteria' are provided within Schedule 3 of the Regulations and these must be taken into account when determining whether a development is likely to have significant environmental effects, including:  the characteristics of the development (including pollution and nuisance);  the environmental sensitivity of the location; and  the characteristics of the potential impact (including probability, magnitude, duration, frequency and reversibility of the impact). As an environmental protection professional you clearly have extremely relevant experience to input into this process to interrogate claims and assumptions made by the developer in their application. Your knowledge of noise, odour and vibration issues, for example, could help inform how planners understand the potential impact of the development on adjacent dwellings. 2.27 For those developments that need to go through the EIA process, the ES must

provide the developer’s assessment of the likely significant effects of the development on the environment and propose measures to mitigate these effects. A developer does not need to consult development management officers on the contents of ES before making a planning application however it can be useful for them to do so. The 1999 regulations permit the developer to ask the LPA for a formal 'scoping opinion' on the information to be included in an ES. This can help to positively influence the quality of the final document submitted as part of the developer’s planning application as it enables the developer to be clear about what the council considers the aspects of the environment likely to be affected. 2.28 Even where it is agreed that an EIA is unnecessary this clearly doesn’t mean that

the development has no potential environmental impact. Therefore the approach adopted by Walsall Metropolitan Borough Council, amongst others, is to continue to offer a scoping opinion to their planning colleagues about the level of environmental information they feel is needed before the development can commence. At this point they will often draft conditions that they recommend are attached to the planning permission or register a tentative objection if it is felt that the information required is critical and may affect the viability of the development. 2.29 If an EIA is required the statutory consultees, such as the Environment Agency,

Natural England and Countryside Council for Wales, will be notified and will be under an obligation to provide information relevant to preparing an ES to the develop should they request it. Guidance on EIAs also encourages developers to Go to: Contents

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“consult the general public, and non-statutory bodies concerned with environmental issues, issues, during the preparation of the environmental statement. Bodies of this kind may have particular knowledge and expertise to offer”33. 2.30 If an ES is submitted as part of a planning application, and that application has

been validated by development management, they will then publish it alongside the application on Part I of the Planning Register, and it will be subject to a public consultation. Statutory consultees will also be notified and have at least 14 days from the date of receipt to comment on the statement. Your development management officers will be mindful that planning applications that require an EIA must be determined within 16 weeks from the date the Environmental Statement is received, unless the developer is happy to agree to a longer period. Given that environmental impact is just one element that development management will need to consider, alongside other material consideration, deadlines may be tight. Horsham District Council: reviewing Environmental Impact Assessments Horsham District Council received a planning application for the development of a non-hazardous waste landfill site upon an existing quarry site within their district. The type of development fell within Schedule 2 of the EIA Regulations 1999 and, whilst an Environmental Statement wasn’t automatically required, an ES was provided with the planning application. Environmental Health was one of the key consultees and were able to utilise their expertise in air quality, odour and noise to raise concerns about the sufficiency of the detail in the ES and query whether it would allow a proper assessment of the likely impacts of this development. In this case, relevant considerations included: 

Whether reasons have been provided to explain the methodologies/approaches used to assess the impact of the development on the environment. It is important to question why particular tools have been used to assess impacts and what assumptions underlie effective use of those tools if this hasn’t been addressed in the ES.

Air Quality  Whether all the relevant types of pollutants are taken into account.  Whether the ES, as well as considering whether the development will result in a significant increase in traffic against the Average Annual Daily Traffic flow data, also looks in more detail at what type of vehicles will increase. This is important given that relatively small increases in Heavy Goods Vehicles rather than passenger cars could significantly affect air quality.  Whether the ES’ prediction of the impact on air quality makes correct assumptions, for example that traffic will be free-flowing, and hence whether the impact on emissions of vehicles accelerating, decelerating and carrying out manoeuvers has been taken into account.

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

When considering the impact of the development on particulate emissions, has the “re-suspension” of dust from the road surfaces (particularly on a site where dusty activities are carried out) been taken into account within the ES? If not this may suggest that the model used to calculate air quality impacts is quite simplistic.

Odour  Does the ES address how odour will be abated to prevent a statutory nuisance and also prevent loss of amenity, particularly as PPS 23 recognises that “Significant loss of amenity will often occur at lower levels of emissions than would constitute a statutory nuisance”? Noise  Is the noise survey extensive enough? For example, if the hours of operation include both weekdays and weekends, has the impact on the noise climate been taken into account for both? If the life of the proposed development is 30 years, is an environmental noise survey consisting of 2 hours of measurements sufficient to assess the affect of the development on background noise levels?  Has the ES made reference to the most appropriate guidance available?  Are all the relevant types of noise addressed in the ES, e.g. tonal, peak, impulsive?  Has the impact of road traffic accessing the development been taken into account when assessing the noise impact of the site, as well as noise from on-site activities?  When calculating the development’s impact on noise, does the ES recognise that different levels of benefit will be derived from noise barriers around the site depending upon whether noise is being measured from a ground floor or an upper floors that overlook the site?  Does the ES recognise the need to prevent a “creeping background noise effect”?

Involvement in Health Impact Assessments (HIAs) 2.31 The World Health Organisation’s European Centre for Health Policy defines a HIA

as “a combination of procedures or methods by which a policy, program, or project may be judged as to the effects it may have on the health of a population”. HIAs in the context of planning applications can be useful to consider what the direct and indirect impacts of the proposed development are likely to be, with a view to enhancing positive aspects and recommending changes to mitigate negative aspects.

Drafting planning conditions 2.32 Local Planning Authorities may refuse permission or grant it with or without

conditions under Section 72 of the Town and Country Planning Act 1990. Circular 11/95 on the Use of Conditions in Planning Permissions outlines that “the power to impose conditions when granting planning permission is very wide. If used properly, conditions can enhance the quality of development and enable many development proposals to proceed where it would otherwise have been necessary to refuse planning permission. The objectives of planning, however, are best served when that power is exercised in such a way that conditions are clearly seen to be fair, reasonable and practicable”. Environmental protection Go to: Contents

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services who are keen to put forward draft planning conditions should therefore be aware of the tests set out in this circular to ensure the validity of conditions and avoid them being adjudged “ultra vires” (or beyond their powers). 2.33 The six tests are:

Necessary: “authorities should ask themselves whether planning permission would have to be refused if that condition were not to be imposed. If it would not, then the condition needs special and precise justification. The argument that a condition will do no harm is no justification for its imposition”. Relevant to planning: Conditions should be used to meet planning objectives rather than other aims that the council has, for example, such as reducing housing lists by requiring developers to only choose tenants for new housing developments from the council’s housing waiting list. Relevant to the development to be permitted: “it must also be justified by the nature of the development permitted or its effect on the surroundings”. Therefore if a condition requires additional parking facilities to be provided that must be genuinely required as a result of the development, not because there is a preexisting need in the area due to an adjoining site. Enforceable: it must be possible to prove a breach of the condition. Enforcement of conditions can be undertaken using notice powers under the Town and Country Planning Act and breach of these notices would allow the council to take a prosecution. This would therefore require a breach to be proven to the criminal “beyond reasonable doubt” standard of proof. Precise: clear wording is required to ensure a condition is enforceable. To avoid enforcement difficulties “conditions which require specific works to be carried out should state clearly when this must be done”. Vague conditions include those that include wording such as "so as not to cause annoyance to nearby residents", which provides little idea of what is expected of them, or those that are subject to qualifications like "if the growth of traffic makes it desirable", which fails to provide objective and certain criteria of what is required. Reasonable in all other respects: “unreasonable” conditions include those that are unduly restrictive. “For example, it would normally be reasonable to restrict the hours during which an industrial use may be carried on if the use of the premises outside these hours would affect the amenities of the neighbourhood, but it would be unreasonable to do so to such an extent as to make it impossible for the occupier to run the business properly. If it appears that a permission could be given only subject to conditions that would be likely to be held unreasonable by the courts then it will be necessary to refuse permission altogether”. 2.34 Wording conditions is a skill that will inevitably develop with experience. Given

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raise a concern that doesn’t justify adding a condition to the planning permission. To assist councils some model conditions are already contained within Circular 11/95 and supplemented by the Planning Inspectorate34. The Planning Inspectorate has also recently consulted on number of potential new model planning conditions35. Within your authority you may gradually build up a set of conditions that have been used to deal with environmental protection issues in past developments. However the lessons below show that it is important not to include these on planning permission as ‘standard’ conditions. Whilst these conditions may have proven to be precisely worded and enforceable in the past, each development is unique. Thus they may not be valid in relation to the current application by virtue of failing the tests on necessity and relevance to the development to be permitted. 2.35 Common problems with conditions include:

Failing to check conditions against the above tests For example, a condition that states no development shall take place until a particular course of action has been “substantially” implemented is imprecise because “substantially” is a very subjective term. Missing implementation, maintenance or retention clauses For example, if you state that “The wind turbines hereby permitted shall be painted grey” then you have left out requirement on when the painting must be implemented and for how long they must be painted grey. Not phrasing the condition properly, so it no longer has the intended effect or meaning For example, if you try to restrict noise by stating that “No customers shall be admitted to the premises after 23.00 hours on any day” you place no meaningful limits on hours of operation. Under this condition the operator could lock his doors at 23.00 so no one else can enter but customers who were already inside can remain. Furthermore, what happens at midnight? Presumably the premises may re-open for another day of business until 23.00. Imposing conditions ‘blanket fashion’, without fully considering the need for them As mentioned above, many authorities have developed useful lists of standard conditions. These are useful to develop standardised wording but they run into trouble if they apply these without giving any thought to the particular circumstances of the case and whether the condition is necessary. If a standard condition is necessary you should always check whether it needs amendment to suit the circumstances. Using Section 106 planning obligations instead Government policy is that a condition should always be used where possible in preference to a section 106 obligation. There are many reasons, explored further below, but in particular, one reason for favouring the use of conditions is that a 34 35

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condition can be appealed against immediately, there is an effective system in place to enforce conditions, and it takes less time to write a condition. Relying on the description of development in an application Case law confirms that a permission is not limited by the description of the planning application. Hence if permission were granted on an application described as being for a 'holiday home', unless the permission contains a condition limiting the use to holiday occupation what has actually been permitted is a normal residential dwelling. Likewise if an application is for a 'takeaway open from 1800-2200 hours' without a condition limiting the opening hours the permission would be granting an unrestricted use in terms of opening hours. 2.36 How planning conditions interact with controls imposed by other legislation

Another key part of Circular 11/95 relates to using planning conditions to duplicate non-planning controls, for example conditions added to the planning permission for a waste management site that seek to control odour are likely to fail the test on “necessity” if the site would be caught by the Environmental Permitting Regulations (EPR) 2010. This is because odour should be covered as a condition within the Environment Agency permit instead. Concerns about whether an Agency permit will properly control odour cannot be used to justify a planning condition that duplicates the legislative controls provided by EPR. It is important to remember that this principle of not duplicating non-planning controls draws planners into a vast range of other regulatory regimes that it would be unreasonable to expect them to be experts in. As specialists in environmental regulation, your advice will be vital to avoid duplication and also prevent development proceeding without the appropriate controls in place, i.e. where a condition would have been valid because other non-planning controls don’t cover this particular situation however an unrestricted permission has been granted because it was wrongly assumed this would create duplication. Exploring the interaction between pollution control and planning The recent case of Harrison v Secretary for CLG and Cheshire West & Chester Council36 saw the High Court specifically address the relationship between the pollution control and planning regimes. Here the local authority took enforcement action as no planning permission had been obtained to convert the site from agricultural land into an animal food processing plant. The site had obtained the required IPPC permit. A planning inspector appointed by the Secretary of State looked at whether deemed planning permission could be granted taking into consideration the government guidance contained within PPS23. The inspector concluded that ' ... odour arising from the industrial processing had caused very significant harm to the amenity of people living in the area. Continuation of harm at an unreasonable level is very likely notwithstanding the [integrated pollution prevention controls (IPPC)] now available. [The appeal site] is an unsuitable location for the processing use... Conditions of planning permission ... could not remove or sufficiently reduce the problems'. Hence planning permission wouldn’t be granted however the appellant, Harrison, argued the advice within PPS23, in particularly paragraph 10 (above), hadn’t 36

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been followed and no clear reasons had been provided to explain the departure from national policy. The High court rejected this, stating that: “The planning system has to determine whether the development itself is an acceptable use of land and the impact of those uses. This to my mind is distinct from the IPPC process which "controls the processes or emissions themselves". PPS 23 advises that planning decision makers "work on the assumption that the relevant pollution control regime will be properly applied and enforced." Guidance is however broad guidance to be applied sensibly having regard to all the facts in a wide range of different situations. It works on the assumption that an appropriate location is chosen for a particular activity not that pollution control will make any activity acceptable in any given situation. It cannot be right in my judgment that paragraph 10 simply says that the planning system must assume that no pollution issues will arise.” His Honour Judge McKenna agreed with the reasoning of George Bartlett QC in Hopkins Developments Ltd v The Secretary of State and North Wiltshire District Council37 that “the planning decision maker was entitled to reach his own conclusions as to the impact of the proposed development on amenity and whether the site under consideration was the appropriate location for the proposed development. The fact that the impact might be capable of being regulated under a pollution control regime did not necessarily mean that the only possible option available to an Inspector was to leave everything to that regime. If the planning decision maker considered that there might be adverse consequences because of the effects of the proposed development on amenity and/or issues as to the appropriateness of locating the development of the site in question, he was entitled to have regard to such matters as material considerations in making his decision on the planning merits of the proposed development. This approach to my mind accords with a fair reading of PPS 23 paragraph 10.” 2.37 Meanwhile planning conditions that would conflict with other legislative controls

will also be ultra vires due to unreasonableness and Circular 11/95 advises that “it will be desirable as far as possible to avoid solving problems by the use of conditions instead of, or as well as, by another more specific control”. It does, however, suggest that conditions on providing adequate sewerage and water supplies, for example, may be justifiable as they would prevent onerous requirements from the council arising under the Public Health Acts after the development has been completed. 2.38 UPDATE: Central government is currently looking to revise and replace Circular

11/95. The Department for Communities and Local Government has consulted on a draft policy to supersede this circular on the use of conditions38. A key principle in the draft policy is “consider[ing] how to keep conditions to a minimum by, for example, agreeing the appropriate level of detail that should be included in the planning application”. This reinforces the desire to move towards a development ‘management’ approach where pre-application discussions help to 37 38

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ensure early engagement and information sharing within the planning process, i.e. ‘front loading’. It is worth having a look at the draft policy in Part 2 of the consultation to see how the guidance on the six tests may develop in future.

Agreeing ‘section 106’ planning obligations 2.39 Planning obligations include legal planning agreements under section 106 of the

Town and Country Planning Act 1990 (as amended by the Planning Compensation Act 1991 Section 12) between the council and developer, and unilateral undertakings offered by the developer to the council. As outlined in Government guidance39 “they are commonly used to bring development in line with the objectives of sustainable development as articulated through the relevant local, regional and national planning policies”. As we have seen in the preceding section, making a development proposal acceptable can also be achieved through using planning conditions and Government Circular 05/2005 identifies that “where there is a choice between imposing conditions and entering into a planning obligation, the imposition of a condition is preferable”40. One of the reasons behind this guidance is the difference in enforcement, with obligations requiring private contractual action to be taken to enforce them rather than the comparatively straightforward option of using notice powers and prosecution to enforce conditions. 2.40 Generally, planning obligations can be positive or negative and can:

(i) (ii)

restrict development or use of land, require operations or activities to be carried out in, on, under or over the land, (iii) require land to be used in any specified way, or (iv) require payment to be made to the authority either in a single sum or periodically, for example to contribute to local infrastructure to mitigate the effect of the development. Unless otherwise specified, these obligations “run with the land” so can be enforced against the original developer and against anyone who subsequently acquires title to in that land. 2.41 The Government guidance highlights that your LDF should include policies on

planning obligations that look at local needs as well as complying with national and regional policies. Therefore it is once again important for environmental protection officers hoping to secure s.106 agreements to address the environmental impact of a proposed development to first influence their council’s strategic planning documents, such as the Core Strategy, which will generally identify for developers and the public (i) the circumstances in which planning obligations will be sought, 39 40

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(ii) the range of infrastructure, facilities and services for which contributions are likely to be sought for different types of development, and (iii) the types of contribution that will be sought e.g. whether pooled or phased contributions will be used and when maintenance payments will be sought. Meanwhile other DPDs and SPDs may flesh out the council’s policies on planning obligations further. 2.42 Even if a developer is happy with a proposed level of financial contribution or

other obligation, this doesn’t automatically mean that it will be acceptable and can therefore be agreed. Planners have long been mindful of the Government Circular 05/2005 when developing their planning obligation policies and individual agreements, as this sets out the Secretary of State’s policy tests that planning obligations must meet, and are similar to the requirements of planning conditions: (i) relevant to planning, (ii) necessary to make proposed development acceptable in planning terms, (iii) directly relevant to the proposed development, (iv) fairly and reasonably related in scale and kind to the proposed development, and (v) reasonable in all other aspects. 2.43 Since the introduction of the Community Infrastructure Levy (CIL) Regulations

2010, three of these tests (ii, iii and iv underlined above) have been made statutory tests but only for developments which are capable of being charged CIL. The relationship between planning obligations and CIL is covered in more detail below. 2.44 The Government has recently consulted on replacing the Circular 05/2005 policy

with a new policy on the appropriate use of planning obligations in light of the introduction of CIL, which will form part of a new PPS on Development Management. Greenwich: using Section 106 agreements to improve air quality The London Borough of Greenwich, one of the Beacon councils for air quality was able to use planning obligations to agree with the developer of the Greenwich peninsula that they would provide details of how the Low Emissions Zone will be implemented at the same time as the first application, for residential or commercial development, is submitted to the council. Read the case study: http://www.idea.gov.uk/idk/core/page.do?pageId=8411390

Grampian conditions and Grampian-style obligations 2.45 You may have come across the term “Grampian Conditions” and wonder how

these differ from the conditions and obligations outlined above. A Grampian Condition is still a planning condition made under section 72 of the Town and Country planning Act 1990. The name is simply derived from the Grampian Regional Council v City of Aberdeen (1984) case where it was held that a negative planning condition – i.e. that precludes development starting until a required step has been taken – is valid. The notable fact here was that it was Go to: Contents

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held valid for a condition to require off-site work to be completed on land not controlled by the applicant. An example would be where an off-site road junction needs improving to cope with the additional traffic that the new development will generate if permitted. A Grampian condition could be imposed on the planning permission to prevent the commencement of work until road improvements have been carried out in accordance with approved plans. Planning obligations under section 106 of the Town and Country Planning Act 1990 can also adopt this “Grampian-style”.

Community Infrastructure Levy (CIL) 2.46 The Community Infrastructure Levy Regulations 2010 finally implement the long

awaited ‘CIL’, which was originally introduced by the Planning Act 2008. “The Community Infrastructure Levy (CIL) is a new charge which local authorities in England and Wales will be empowered, but not required, to charge on most types of new development in their area. The proceeds of the levy will be spent on local and sub-regional infrastructure to support the development of an area in line with the local authorities’ development plans”41. The Government overview also highlights that “CIL must be levied in pounds per square metre of the net additional increase in floorspace of any given development. This will ensure that charging CIL does not discourage the redevelopment of sites”. Once planning permission has been granted local authorities will use a ‘Liability Notice’ outlining how much money is due under CIL. CIL will become due on “commencement”42 of the development and liability to pay will, like section 106 obligations, run with the land. 2.47 The aim of CIL is to: 

improve predictability, transparency and certainty for developers as to what they will be asked to contribute;  increase fairness by broadening the range of developments asked to contribute; and  allow the cumulative impact of small developments to be better addressed and enable important sub-regional infrastructure to be funded. 2.48 Unitary and district authorities are the relevant charging authorities for CIL and

hence, if they wish to use CIL, they should prepare a draft charging schedule, which will be another document as part of their Local Development Framework. Like a development plan document, the charging schedule should go through some rigorous testing including consultation and public examination before an independent person, whose report will be binding on the authority. Regional Planning Bodies are not empowered as charging authorities however there is the opportunity for CIL to be pooled to deliver the Regional Strategy. However the London Mayor is empowered to charge CIL for road/transport infrastructure funding, as explored later in our case study on Crossrail.

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2.49 As an ‘infrastructure’ levy the definition of ‘infrastructure’ is important to

understand how CIL monies can be spent. Obvious examples of infrastructure are transport, flood defences, hospitals and schools. However “sustainable development”, required by Planning Policy Statement 1, also requires other local facilities to be adequate, such as parks and green spaces, health and social care facilities, cultural and sporting events, etc. Thus the Planning Act 2008 which created ‘CIL’ allowed local authorities to use this broad definition of ‘infrastructure’43. As the Government recognised in August 2008, “Priorities will vary from place to place. In one authority, a new housing estate might require a new road bypass, while in another authority, a similar housing estate might require an additional drainage system or a new local district heating scheme”44. Affordable housing however is excluded from the definition as planning obligations are deemed by the Government as the best way of tailoring site specific affordable housing contributions. 2.50 The big question for many councils has been whether the introduction of CIL will

mean the end of section 106 planning obligations. It is clear that planning obligations will continue to be used for the time being. However, as mentioned previously, the Community Infrastructure Levy (CIL) Regulations 2010, have tightened up the use of planning obligations for developments which are capable of being charged CIL. Therefore from 6th April 2010, if a development is capable of being charged CIL (even if CIL hasn’t been set up locally), it is unlawful for a planning obligation to be taken into account when determining a planning application for a development, or any part of a development, UNLESS the following three requirements are met: (i) where obligations are used they must be necessary to make proposed development acceptable in planning terms, directly related to the proposed development, and fairly and reasonably related in scale and kind to the proposed development; (ii) ensuring CIL and the use of planning obligations doesn’t overlap through preventing CIL and planning obligation monies being used to fund the same item of infrastructure and requiring the authority to set out its intentions for how to use CIL funds; and (iii) allowing only limited pooling of s.106 towards infrastructure that may be funded by CIL as this is “the government’s preferred vehicle for the collection of pooled contributions”45. Overall the previous Government’s aim was “to reinforce the purpose of planning obligations in seeking only essential contributions to allow the granting of planning permissions, rather than more general contributions which are better suited to the use of CIL”

Section 216 of the Planning Act 2008 covers the definition of “infrastructure” which can be amended by regulations. 44 http://www.communities.gov.uk/documents/planningandbuilding/pdf/communityinfrastructurelevy.pdf 45 http://www.communities.gov.uk/documents/planningandbuilding/pdf/1503577.pdf 43

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2.51 UPDATE: The new Government’s position is that they “will scrap CIL and non-

site-specific planning obligations and instead introduce a single unified local tariff applicable to all residential and non-residential development (even a single dwelling), but at graded rates depending on the size of the development” (Open Source Planning, page 12). Did you know that funding needed for the ambitious London Cross Rail project will be secure via section 106 agreements and the Community Infrastructure Levy? “The London Plan”, the capital’s equivalent of a Regional Strategy, states that “Given the strategic regional importance of Crossrail, and that the funding arrangements for the scheme announced by Government makes clear that it will not proceed without contributions from developers, the use of planning obligations to secure resources to support funding Crossrail from developments that give rise to additional demand for public transport that Crossrail will help address is appropriate in terms of Government guidance (currently Office of the Deputy Prime Minister Circular 5/2005) and other policies in this Plan. The funding agreement for Crossrail between the Mayor, Transport for London and the Government envisages that a total of £600 million might be raised towards the cost of the project from developers, as follows: • £300 million from use of planning obligations or any similar system that might replace them; and • £300 million from the proposed Community Infrastructure Levy”. (Para 6.20) In this regional plan policy for London, Policy 6.5 requires “developments which contribute to the transport needs that the project will wholly or partly address will be required to contribute towards its funding through the use of planning obligations”. The plan commits the Mayor to providing local authorities in London with guidance on negotiating planning obligations. This guidance will include ensuring the economic viability of the individual development is taken into consideration and it will be interesting to see what approach the Mayor takes to developing “standard charges and formulae for calculating fair and reasonable contributions to be sought and guidance on how these should be applied in specific localities and different kinds of development”.

Monitoring and enforcement 2.52 As with environmental protection functions, planning enforcement is generally

split into two strands of reactive and proactive work. The former includes investigating complaints about unauthorised development and land use. Meanwhile proactive enforcement looks at monitoring compliance with planning permissions, including conditions and obligations. This section is primarily concerned with the latter proactive enforcement role and as previously identified, we know that conditions and obligations are enforced in different ways;  obligations require private contractual action to be taken to enforce them  the LPA has discretionary enforcement powers to tackle a breach of planning conditions, including issuing statutory notices, prosecuting and/or undertaking works in default. Go to: Contents

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2.53 Discharging conditions and implementing obligations: The way local

planning authorities discharge these planning conditions has become the focus following work undertaken by Addison & Associates and Arup in 2008 to support the Killian Pretty Review. This suggested a generally poor approach was currently taken with poorly established procedures and inadequate audit trails or monitoring systems. The recent CLG consultation highlighted above suggests that “Conditions discharge has typically been relegated to a low priority task by officers as the time targets involved are not linked to key performance indicators … awarded to LPAs. As a result this has sometimes caused expensive delays and frustration on behalf of developers or agents, particularly in relation to ‘prior to commencement’ conditions”46. 2.54 The process to discharge a condition has long required an application to be made

in writing47 but the lack of a standardised form meant this was done in a variety of ways. A standard application form and guidance on applying for a discharge is now available from the Planning Portal. This, alongside the introduction of a fee for discharge requests48 under the Town and Country Planning (Fees for Applications and Deemed Applications) (Amendment) (England) Regulations 2008, aims to improve how effectively discharges are handled. The relevant government circular 04/2008 on ‘Planning-related fees’, indicates that “authorities should endeavour to respond within 21 days for simple approvals” however acknowledges this may not be practical. The circular goes on to state that if a response is not provided within 12 weeks, the applicant should be refunded their fee. Unless agreed by the applicant and LPA agree a longer timescale in writing, the statutory timescale for receiving a response is 8 weeks. After this time the applicant has a right of appeal to the Secretary of State. Those whose applications for a discharge of conditions are refused can also appeal to the Secretary of State. 2.55 Meanwhile in relation to section 106 obligations, CLG’s ‘Planning Obligations:

practice guide’ and Circular 05/2005 lays out that “in order to ensure that agreed planning obligations are implemented effectively and contribute towards sustainable development, it is essential that LPAs put systems in place to be able to monitor the timely and efficient delivery of obligations, and any enforcement action where necessary”. Exactly what these systems for monitoring of both planning conditions and obligations look like varies greatly across authorities. As does the amount of involvement that EP services have in this final stage of the planning system. 2.56 In some authorities monitoring and enforcement work may simply be shared out

amongst development management officers. As we’ll see in the final section on ‘Influencing planning decisions’, these officers already face challenging targets to determine planning applications. We’ve also seen that greater emphasis is being http://www.communities.gov.uk/publications/planningandbuilding/improvingplanningconditions Article 21 of The Town and Country Planning (General Development Procedure) Order 1995 48 2008-9 charges were £85.00 per request, (or £25.00 for conditions relating to ‘householder’ application types) 46

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put on these officers being development ‘managers’ with more involvement with developers at the pre-application stage. As a consequence the danger with this approach is that monitoring and enforcement of conditions and obligations could become sidelined if undertaken by these officers. The opportunity for LPAs to secure contributions from the developer for compliance monitoring (under a s.106 agreement) and to charge for condition discharge requests49 potentially enables councils to adopt more proactive approaches to undertaking planning enforcement work. 2.57 Some authorities have chosen to use developer contributions to employ a

dedicated monitoring officer within their planning department (see the Islington case study below). In other authorities specialist enforcement officers within the planning department have responsibility for a broad range of planning enforcement work, including compliance with obligations and conditions, whilst in the London Borough of Enfield planning enforcement is integrated into the powers and functions of a range of enforcement teams, including Street Scene Enforcement and Public Health and Nuisance. They also work closely with Licensing, Environmental Health, Food Safety, Development Control, Building Control, Waste and the Anti Social Behaviour Team. The London Borough of Enfield approach allows the council to provide a robust planning enforcement service through drawing upon the expertise that already exists within the authority50. A significant amount of this expertise sits within council environmental protection services, thus EP and planning services may wish to explore creating internal service level agreements to allow EHOs, as the local specialists in air quality, contaminated land and nuisance, to oversee compliance with environmental conditions and obligations. This may include an agreement on recharging any contributions that have been secured from the developer for monitoring compliance to EP to deliver this service. 2.58 Meanwhile some authorities, like Halton Borough Council and Wolverhampton

City Council, may be fortunate enough to employ a structure where development management, planning enforcement and environmental health already sit sideby-side in the same service directorate/group. This type of organisational structure can definitely help to encourage joined-up working by bringing together all the necessary expertise and resources to monitor environmental-related obligations and conditions. Yet restructuring shouldn’t need to be a pre-requisite to successfully working together. If you have provided advice to planners on the need for a condition to be placed on the planning permission or requested a s.106 agreement be secured, you have clearly identified that this type of development has potential environmental impacts. Thus it is crucial that these requirements are complied with to mitigate against the impacts of this particular use of land but also to avoid undermining your council’s use of conditions and obligations with developers in the future. Find out how your colleagues in 49

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planning intend to monitor compliance, and consider if there are opportunities to collaborate to save future council resources. Also keep in contact with your planning colleagues and share information that may be relevant to whoever is undertaking the enforcement role. 2.59 Finally, technology can also help to keep track of live s.106 planning obligations

to ensure key “trigger points” aren’t missed, resulting in actions or financial contributions failing to be completed or collected. Separate s.106 databases have been developed by a number of authorities, including Colchester Borough Council (http://www.idea.gov.uk/idk/aio/1205877). Given that full planning permission is usually valid for three years and development may start at any point within this period, a central record of obligations helps to avoid ‘orphan agreements’ where the original development management officer has left the authority and s.106 agreements are subsequently forgotten about. Similarly for planning conditions, planners at Litchfield District Council utilise information from colleagues in Building Control to identify when a development has commenced and use this intelligence to review whether pre-commencement conditions have been complied with. Find out what processes your planning service has in place and discuss whether EP should also be notified at key stages in the development process, such as commencement and when it is requested that a relevant condition is discharged.

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Islington: proactively monitoring section 106 agreements In July 2009, Islington Council adopted a new Supplementary Planning Document on ‘Planning Obligations (Section 106): using planning obligations to achieve sustainable development’. The council’s policy is to require a section 106 agreement from all developers where their proposals are for: - ten or more residential units - student housing/ hotels/ hostels with ten or more rooms - commercial and employment developments with an increase of 500 square metres gross external floorspace or more - Other proposals where necessary. The SPD includes an indication of the standard obligations and charges that the council typically seeks from developers, to provide them with greater certainty and where possible speed up the planning process. However, as these can’t be applied in a blanket fashion, the document also lays out the procedure for negotiating planning obligations. These negotiations are expected to start as part of pre-application discussions and it is made explicit that if an application requires a section 106 agreement (according to the planning obligation SPD) but the developer fails to include a planning obligation statement and Heads of Terms as part of the application, the council will not validate the application because it fails their local validation requirements. Islington’s approach to calculating charges to be applied to proposals uses average occupancy and employment levels. Arguments that planning obligations may make the development unviable are considered on the basis of evidence submitted by the developer and, if sufficient, the council may be flexible on the timing and level of payments required. One of the most interesting uses of developer contributions achieved by Islington is to fund the role of a Construction Impacts Monitoring Officer (CIMO). As one of most densely developed areas in country, Islington has always felt the impacts from construction sites with concerns about noise, dust and vibration being raised by immediate residential properties. Complaints from residents were often directed at Councillors and hence this put greater pressure on environmental protection services to resolve these. Islington is one of an increasing number of authorities to have established a code of practice for developers and their contractor. The Code “specifies construction practice standards and measures which should be put in place to address the potential effects of construction, including air pollution, noise and vibration, traffic congestion, dust, contamination of land and water and waste disposal”. Islington’s new SPD now makes compliance with the ‘Islington Code of Construction Practice’ a standard obligation included within a section 106 agreement. The SPD identifies that “The Council incurs costs in the monitoring of construction practice and liaison with developers and the community, which should be met by the developer. The level of monitoring required will depend on a number of factors such as the size of development, the length of project, whether demolition is involved, the form of construction practices used and associated level of noise generated, times of operation and proximity to other properties". Islington provide indicative costs, based on experience of monitoring construction impacts, of £100 per residential unit, £100 per 100 sq m commercial floorspace and £50 per student Go to: Contents

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housing, hotel and hostel bedroom. These charges ensure that the CIMO role is funded, in line with the “polluter pays” principle, to respond to complaints. Find a copy of Islington’s SPD on planning obligations at: http://www.islington.gov.uk/Environment/Planning/planningpol/local_dev_frame/pol_su pplement/adopted_spd/planningobligations.asp The dangers of unmonitored, unenforced conditions Council X agreed planning permission for a residential development near an old railway line and station. Conditions where applied where the developer needed to erect and maintain a fence to ensure residents did not expand their gardens into an area of land which was contaminated. These conditions were not kept to and years later it was discovered that no proper fence was erected and residents had long since extended their gardens into the contaminated area, growing foods etc. There existed potential risks to the health of residents and also to the council financially and legally. The clean-up of the land is now necessary under Part 2A – a time consuming and costly business.

Influencing planning decisions 2.60 At the end of Part 1 we highlighted a number of key points to take into

consideration when trying to influence the development of planning policy. To summarise these were:  Remember in reality protecting the environmental is just one of the aims of the planning system;  As with environmental protection, high expectations are placed on planners to deliver;  Shared objectives and opportunities to create a ‘win-win’ for both professions do exist;  Negotiate around conflicts through offering alternative solutions rather than just identifying problems;  Draw upon the experience of other authorities and existing guidance to identify those alternatives;  Planners aren’t experts in everything so avoid unnecessary and unexplained jargon;  Talk to each other about how best you can present your arguments and evidence so it will stand up to the planning tests;  Consider the future savings for both services through investing in working together. 2.61 Without exception these points are equally applicable when working with

development management. In particular local government development management officers will find themselves working to central government performance targets for the determination of planning applications, namely NI 157 on Processing of Planning Applications51. This indicator looks at the percentage of planning applications by type determined in ‘a timely manner’ and sets expectations on individual local planning authorities to process 60% of major 51

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applications within 13 weeks, 65% of minor applications within 8 weeks, and 80% of other applications within 8 weeks. Throughout your career at an individual authority you are likely to comment on far more individual planning applications than input into new strategic planning documents. Therefore, through regular contact with colleagues in development management, environmental protection officers have the opportunity to establish themselves as key stakeholders offering trusted and timely evidence and advice to help planners meet these determination targets. 2.62 Many of these planning decisions will be delegated to the authority’s senior/chief

planner. More complex and/or contentious planning applications, however, will go to a public development management or planning committee meeting, compromising of elected members. Environmental protection services may wish to make an officer available for relevant parts of the meeting to answer questions from members or raise objections.

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Appendices Annex 1: Checklist for good practice STRATEGIC PLANNING

Yes / No

Do you know who your ‘forward/ policy planning’ officer is? Are you familiar with the Planning Policy Statements such as PPS23 (pollution control), PPG24 (noise)? Have you input into the Local Development Framework documents (including the ‘Core Strategy’) on:  Contaminated land  Air quality  Noise  Odour  Light  Streetscene Have you looked at your council’s Local Development Scheme to see what stage your Local Development Framework has got to? Have you looked at the examples of Supplementary Planning Documents on LG Regulation website and considered whether such documents would be useful in your area to expand upon issues in the Local Development Framework? Does your council’s policy on developer contributions consider contributions which may be made for Environmental Protection issues? Do you make yourself aware of the planning allocations strategies and provide comments to planning where appropriate, on EP issues? Do you know your transport planners? Have you considered the Local Transport Plan and made comments as regards EP issues such as air quality and noise, to the relevant transport planners? DEVELOPMENT MANAGEMENT

………………… ………………… ………………… …………………

Yes / No

Are you aware of planning applications which are submitted and which impact upon Environmental Protection issues such as contaminated land, air quality, noise and odour? Have you discussed how validation of planning applications ensures sufficient information has been provided e.g. contaminated land risk assessment for former industrial sites / sites with sensitive end-use? Do you attend the relevant parts of pre-application discussions with the developer? If not, have you discussed your potential involvement with development management? Go to: Contents

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Have you and your development management colleagues reviewed the process which you use to make comments on applications to ensure if is the most efficient and effective method available? Are you involved in discussions regarding Environmental Impact Assessments (EIA) e.g. whether one is needed - screening, what it should cover - scope, and the quality of the EIA provided? Do you make yourself aware when there is a change of use requested e.g. B1, B2 or B8? Do you carry out joint site visits with your planning colleagues for planning applications where Environmental Protection issues are indicated? Do you consider with your Environmental Protection colleagues how relevant issues will be addressed should they arise during the development phase? e.g. noise, dust, vibrations, unexpected contamination. Are these catered for in planning permission conditions? Are you aware of the tests which conditions must meet when drafting them? Have you and your planning colleagues agreed some standard wording for conditions? If so, are your careful in how you apply them to planning permissions i.e. do not use them in a blanket fashion but apply them judiciously and proportionately, relevant to the particular development? Do you ensure you provide your development management colleagues with clear, persuasive information and alternative options when making comments on applications e.g. LG Regulation Biomass guidance? MONITORING & ENFORCEMENT

Yes / No

Do you discuss with your planning colleagues how you will ensure any Environmental Protection related conditions or obligations will be monitored, enforced, discharged? Do you keep a record of all Environmental Protection conditions added to planning permissions? DEVELOPING / SUSTAINING RELATIONSHIPS Have you provided your planners with a copy of LG Regulation’s ‘Guide to Environmental Regulation for Planners”? Have you considered running joint training events with your planning colleagues or approaching their regional professional bodies (e.g. Royal Town Planning Institute) to provide a speaker at your events, or offering to speak at the planners’ events? Do you find / create opportunities to chat informally with your planning colleagues?

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Annex 2: The planning glossary A B C D E F G H I J K L M N O P Q R S T U V W X Y Z C Call-in application: applications where the Secretary of State uses his reserve powers to direct the Local Planning Authority to refer an application to him to make a decision rather than allow the application to be decided locally. Typically applications that are called-in involve development that may conflict with national planning policy on important matters, could have wide effects beyond its immediate locality, raises significant architectural and urban design issues, national security interests, the interests of foreign Governments, or where there is significant regional or national controversy. See the Planning Inspectorate’s Good Practice Note in Called-in applications: www.planningportal.gov.uk/uploads/pins/pins-gpa-3-2009_called-inapplications.pdf Community Infrastructure Levy (CIL): introduced by the Planning Act 2008 the Community Infrastructure Levy (CIL) is a new charge that local authorities in England and Wales may charge on most types of new development in their area. The levy will be spent on local and sub-regional infrastructure to support the development of an area in line with the local authorities’ development plans. More Conditions: planning conditions are, where necessary, added to planning permissions. They enhance the quality of development and enable many development proposals to proceed where it would otherwise have been necessary to refuse planning permission. To be valid, conditions must meet six tests. More Core Strategy: a compulsory document within the Local Development Framework, which outlines the overall vision for developing the area and places within it with (i) strategic objectives that focus on the area’s key issues, (ii) a delivery strategy for achieving these objectives, and (iii) arrangements for monitoring the strategy.

D Development Plan Documents (DPD): These are statutory documents that form part of the Local Development Framework. Examples include the Core Strategy, area action plan and site-specific allocations. More

E Environmental Impact Assessment (EIA): EIA is a process that European law requires some developments to go through to assess its potential environmental impacts. More Environmental Statement (ES): As part of the Environmental Impact Assessment process (EIA), the developer must produce an environmental statement to describe the likely significant effects of the proposed development on the environment and proposed mitigation measures. More

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F Front loading:

G General Permitted Development Orders (GPDO): GPDOs outline which types of limited/minor development are deemed to have been automatically granted planning permission without requiring a planning application to be made. Also see Permitted Development Rights.

L Local Development Framework (LDF): “a folder of local development documents that outline how planning will be managed in your area”. Each LDF will be different, with a mixture of compulsory elements and optional documents that can be produced depending upon the local circumstances. More Local Development Order (LDO): An order made by a local planning authority extending permitted development rights for certain forms of development, with regard to a relevant Local Development Document. Local Planning Authority (LPA): The local authority or council that is empowered by law to exercise planning functions. Often the local borough or district council. National parks and the Broads authority are also considered to be local planning authorities. County councils are the authority for waste and minerals matters. Local Transport Plan (LTP): Plans to “set out the authority's local transport strategies and policies, and an implementation programme”

P Permitted development rights: certain types of limited/minor development are deemed to have been automatically granted planning permission without requiring a planning application to be made. Exactly which types of developments are given this automatic permission, known as “permitted development rights”, is outlined in General Permitted Development Orders. These are made by the Secretary of State, who (alongside the Local Planning Authority) can also withdraw these blanket rights. Planning Inspectorate (PINS): the body responsible for processing planning and enforcement appeals and reporting on planning applications ‘called in’ for decision by the Department for Communities and Local Government. They also conduct examinations into local Development Plan Documents. Planning obligations: legal planning obligations between the council and developer. Although these are often called section 106 agreements they may be also take the form of a unilateral undertaking by the developer. These are commonly used to bring development in line with the objectives of sustainable development. More. Planning Policy Guidance (PPG): planning policy guidance notes were produced by central government to outline their national planning objectives before Planning Policy Statements were introduced, which are now gradually replacing PPGs. More. Go to: Contents

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Planning Policy Statement (PPS): planning policy statements are produced by central government to outline their national planning objectives and explore the relationship between these planning policies and other national policies that have a strong link to development and land use, such as housing. Unlike the planning policy guidance notes they are replacing, they don’t provide local or regional planners with policy advice on how to practically implement these national objectives within their Regional Strategy or Local Development Framework. More.

R Regional Strategy (RS): a regional planning document created to outline policy on the provision for new housing and priorities for the environment as well as transport, infrastructure, economic development, agriculture, minerals extraction and waste treatment and disposal. Revoked in July 2010 and due to be legally abolished. More.

S Scoping opinion: an opinion provided by the Local Planning Authority to the developer on what should be included within their Environmental Statement, as part of the Environmental Impact Assessment. This will highlight to the developer what the council considers to be the aspects of the environment likely to be affected by the proposed development. More. Screening opinion: an opinion provided by the Local Planning Authority to the developer on whether they need an Environment Impact Assessment. More. Section 106 agreements: a type of planning obligation in the form of an agreement between the LPA and the developer, made under section 106 of the Town and Country Planning Act 1990 (as amended by the Planning Compensation Act 1991 Section 12). More. Strategic Environmental Assessment (SEA) and Sustainability Appraisal (SA): These are both forms of assessment that are used to review the likely effects of local and regional planning policy. The SEA concentrates on assessing the effects of plans on the environment whilst the SA looks at the environmental, social and economic effects. More. Supplementary Planning Documents (SPD): These are optional documents that may be produced to form part of the Local Development Framework. They provide additional detail about policies outlined in the statutory Development Plan Documents. More.

Sustainable Community Strategy (SCS): a long-term vision for the area to tackle local needs created by the Local Strategic Partnership. This vision is delivered through the Local Area Agreement (LAA) and the Local Development Framework should also be helping to deliver SCS outcomes. More.

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Use Classes: certain types of land use are grouped into Use Classes. These classes are named using a single letter and number combination (for example, A1 is the use class used to represent ‘Shops’). More. For more definitions there are a number of other glossaries available, including:  http://www.pas.gov.uk/pas/core/page.do?pageId=10  http://www.atlasplanning.com/page/glossary.cfm  http://www.planningportal.gov.uk/england/professionals/glossary/  http://www.planninghelp.org.uk/resources/glossary

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