Local Government Lawyer - A barrier to progress

A barrier to progress

Tuesday, 02 February 2010

A survey of professionals in the waste PFI sector has found that almost three-quarters believe the planning system has become a major obstacle to meeting landfill targets, compared to less than a quarter who said the same in 2006. Nigel Hewitson looks at what has changed.

There is a widespread perception abroad that the land use planning system represents an obstacle in bringing forward development projects rather than a means of facilitating them. On the basis of the results of a recent survey we conducted, it would appear that nowhere is this perception more widespread than in the waste sector.

In 2006 and again in 2009 Norton Rose carried out a survey aimed at those involved in the Waste PFI sector. Both surveys sought views as to whether the UK Government was likely to meet the targets set out in the EU Landfill Directive of 1999 to reduce the amount of biodegradable waste being sent to landfill by 2010. Both also sought views from those surveyed as to what they considered to be the most significant challenges in pursuing a PFI Waste Programme.

A comparison of the results of the two surveys is instructive. On the main question about the prospect of meeting the landfill reduction target, respondents were very much more optimistic in 2009 than they had been in 2006. Whereas in 2006 as many as 73% of respondents thought the target would not be met, in 2009 55.5% thought it would.

On the question of challenges to be overcome, there was an even more significant shift: whereas only 25.4% of the 2006 respondents cited planning and the planning system as a major obstacle, an astonishing 73.2% of the 2009 respondents mentioned planning as a barrier to progress. So why is planning now considered such a concern - and what has changed in just three years to produce such a significant change in perceptions of the system?

The comments made by respondents varied widely and a number of respondents did not elaborate on the bald statement that planning is a problem. The reasons that were put forward largely fell into the following areas:

the planning process takes too long and is too complicated;
it is difficult to obtain public acceptance of waste schemes and a large number of objectors can lead at best to delays and, in a worst case scenario, to outright refusal; and
local planning authorities seem to have difficulty in understanding and distinguishing between the impacts of differing technologies. One example given was of a planning authority treating gasification as if its impacts were the same as incineration, when most experts would say that the former was a significant improvement over the latter in terms of its environmental effects.

One respondent summed up the views of many as follows: “The main challenge is planning. Even with will and enthusiasm all these [waste projects] are very sensitive locally and the planning process takes ages”.

Views will differ as to the extent to which these criticisms are justified. It is undeniably the case that some applications do, as a fact, take many months, or even years, to get through the system and obtain planning permission - especially if the case goes to appeal or is “called in” by the Secretary of State. Certainly it is often difficult to predict with any accuracy the timescale for obtaining planning permission within the overall project programme.

Waste projects come forward relatively infrequently. When they do come forward they tend to be inherently complex, demanding a level of understanding and familiarity which local planning authorities and planning inspectors will not necessarily be able to build up in the same way as they will with more frequently seen applications - such as residential developments. Allied to that point, the way in which waste is dealt with has changed considerably in recent years, with much more emphasis being placed on recycling and new cleaner technologies such as gasification, “plasmafication” and anaerobic digestion.

As a result, planning use classifications have struggled to keep up - witness the apparent inability or unwillingness of at least one authority to distinguish between gasification and incineration. Most uses involving the processing of waste are outside the current Use Classes Order and are sui generic, meaning that any change of use is likely to require planning permission. For a use that is in a Use Class, a change of use to any other use within that class will not require permission.

There is an inherent tension between the duty of planning committees, which comprise elected councillors, to have regard only to material planning considerations and the accountability of individual councillors to those electing them (whose view of the development may well be “not in my back yard”). This often leads to planning committees resisting schemes because of the level of public objection, regardless of whether such objections have a sound planning justification. It is very easy for delays to arise as a result. Planning Committees may defer the application to obtain more information or for a site visit or may even refuse proposals to appease their electorate - leading to the need for an appeal to the Secretary of State.

It has certainly not helped matters that local planning policy has in the last few years been in transition - moving from old style local and structure plans (possibly with a separate waste plan) to the new Regional Spatial Strategies and Local Development Frameworks. This process has taken much longer than was anticipated, and in many areas the statutory policies are hugely out of date with little weight being able to be afforded to emerging, more appropriate, policies because they are at an early stage in the adoption process.

Not all these problems are, of course, unique to waste projects but it appears they are particularly keenly felt in that sector. One way in which these issues could be addressed is to make the newly-established Infrastructure Planning Commission (IPC) responsible for waste projects. (Its remit in the waste sector is currently limited to hazardous waste and waste water.) This would speed up the process as the IPC will be working to very tight timescales in considering schemes. The IPC would also quickly build up expertise in waste projects - as it would see them quite frequently, and would readily limit itself to consideration of relevant planning issues - as it is statutorily obliged to follow National Policy Statements.

Nigel Hewitson is a Senior Associate and Head of Planning at International Legal Practice Norton Rose LLP.

Add comment

The use of pseudonyms is permitted, but you must supply an email address, which will not be published or used for any purpose other notifying you of new comments on this article (if requested below).
All comments will be moderated before publication. We reserve the right not to publish comments that are offensive, defamatory or irrelevant to the topic.

JComments

Latest Stories Only elected officials should represent councils on LEPs, says IoD 06/09/10: All local authority positions on local enterprise partnerships should be occupied by elected officials, the Institute of Directors has demanded. It also called for LEPs to focus on transport, infrastructure and planning.
Westminster brings enforcement action over branded cigarette bins 03/09/10: Westminster City Council is taking legal action against a taxi business over its high-profile branded cigarette bins, a move the company's chairman described as "perverse" and a waste of taxpayers' money.
DCLG to revoke traveller planning guidance, strengthen enforcement powers 31/08/10: The government has announced plans to revoke Whitehall planning circulars that it blames for creating the perception that there are different rules for the travelling community and the settled community.
Battle over fell route to rumble on as High Court quashes inspector's decision 31/08/10: The Lake District National Park Authority has pleaded with motorbike riders and 4x4 vehicle drivers not to use a popular off-road high level fell route until its status is finally resolved.



Planning an extension The downturn prompted the last government to introduce changes to the planning system, including replacement planning permissions. Christian Silk outlines the key issues that those in local government should be aware of.	Into the void The government's announcement of the abolition of both the Standards Board and the pre-determination rule leaves lawyers and councillors in the dark about how they will be replaced, writes Mark Smulian.
Government tells councils to tackle excessive street signage Councils are installing traffic signs in the mistaken belief that they are legally required, ministers have claimed. Calling for a reduction in ''street clutter", they announced a Department of Transport review of its policy.
Developer agrees to pay £4m to Barnet after prolonged planning battle A developer has agreed to pay Barnet Council £4m after a lengthy planning enforcement battle. The company built 83 flats on the grounds of a former mental hospital, instead of the 64 for which it had permission.
Government rules out mandatory recycling laws for businesses The government has this month ruled out introducing a mandatory recycling laws for businesses, preferring to promote voluntary schemes to encourage businesses to recycle their waste.
New competition laws on supermarket planning bids and property disposals New laws that apply competition rules to planning decisions for the first time came into force last week, banning local authorities and private landlords from striking deals with supermarkets to prevent rivals from setting up shop nearby.
Inspector overrules refusal of planning permission on climate change grounds The Planning Inspector has overruled a decision to refuse planning permission for a new biofuel production plant, ruling that the council was not able to take the effect on climate change into consideration.
CBI says planning uncertainty threatens £150bn low-carbon investment Industry leaders have warned that £150bn of private sector investment in low-carbon infrastructure will not be made unless the government sorts out uncertainty in the planning system and energy markets.
Pickles vows to streamline "Byzantine" EIA rules The government is proposing to revoke the four “Byzantine” sets of rules governing Environmental Impact Assessments and replace them with a single set of streamlined regulations.
Two-thirds of organisations still to register for CRC as deadline looms 12/08/10: Up to 70% of the public sector bodies and large businesses obliged to register for the CRC Energy Efficiency Scheme have yet to do so, despite there being less than 50 days to go before the 30 September deadline.
Housebuilder launches legal challenge over scrapping of regional strategies One of the UK’s largest privately-owned housebuilding businesses is bringing a judicial review action over the government’s decision to axed regional planning strategies, it has been reported.
Alliance urges key role for "larger-than-local" planning in reformed system An alliance of 29 national bodies led by the Royal Town Planning Institute has urged the Communities Secretary to ensure that strategic planning is embedded in reforms to the planning system.
LGO criticises council over mishandling of planning application A local authority has been criticised by the Local Government Ombudsman and told to review its procedures after the botched handling of a planning application in an area of outstanding natural beauty.
HSE wins appeal over council's failure to consider revoking permission The Court of Appeal has ordered Wolverhampton City Council to consider whether it should revoke planning permission for a student accommodation block located close to a liquefied petroleum gas facility.
DCLG calls for suggestions for changes to building regulations The DCLG is urging councils, businesses and individuals to suggest changes to building regulations. It said it wanted to strip away regulation where it is unnecessary or there are other ways to achieve the same outcomes.
Wycombe DC adopts first local development order in UK Wycombe DC has become the first council to adopt a local development order, after receiving government approval. The LDO allows change of use of ground floor premises without the need to apply for planning permission.
LEP of faith? The government has announced its intention to abolish RDAs and replace them with local economic partnerships. Whether the change of approach will be successful remains to be seen, writes Steven Smith.
Pickles sets out planning principles for free school sites Local authorities will be expected to “attach very significant weight” to the desirability of establishing new free schools and enabling local people to do so, the Communities Secretary said this week.
Communities win right to build, but plans need 80%+ support Communities are to be given a right to build shops, businesses and facilities as well as new homes, the Housing Minister has said. However, they will require "overwhelming support" to proceed without planning permission.
Planning officers submit 12 suggestions for cutting red tape A reduction in the paperwork required to accompany applications and an end to “gold-plated” arrangements in relation to sustainability assessment are among the ways that the planning system could benefit from de-regulation.
Assembly Government issues planning guidance to boost rural communities The Welsh Assembly Government has launched new planning guidance designed to boost the rural economy and increase the provision of affordable housing. It expects councils to implement the guidance with immediate effect.
Council advised to tolerate illegal traveller sites amid concern about legal costs The planning enforcement sub-committee of a local authority has been advised not to evict travellers from unauthorised plots because legal action could prove extremely expensive and there is no guarantee of success.
Government moves to scrap 'bin tax' The government is remove council powers to charge residents for household refuse collections or fine households for overfilling their bins, it was announced today.
Appeal court finds council liable to pedestrian after failure to cut vegetation The Court of Appeal has held that a highways authority still owed a duty of care to a pedestrian even though she was careless in how she crossed a busy road. Newham had failed to cut back vegetation in the middle of the crossing.
Under scrutiny A recent ruling suggests that when it comes to planning decisions relating to historic buildings, public scrutiny trumps commercial confidentiality. However, the judgement has left a number of unanswered questions, writes Robin Hopkins.
Damage limitation Mid Devon District Council is thought to be have been the first council to make use of the Environmental Damage (Prevention and Remediation) Regulations 2009. Simon Newcombe explains what was involved.
Pickles lays order in Parliament scrapping "Soviet-style" regional strategies The Communities Secretary has laid an order in Parliament revoking Regional Strategies with immediate effect, saying that communities would no longer have to endure "failed Soviet tractor style top-down planning targets”.
Council secures closure of depot built without permission seven years ago Medway Council and the RSPB are celebrating after a public inquiry ruled that the owners of an industrial depot built without planning permission in north Kent seven years ago must clear the site.t;/span>
Penfold Review calls for radical shake-up of non-planning consents A government review of the “complex and fragmented landscape” of non-planning consents has made a series of recommendations, including merging planning permission and conservation area consent into one permission.
Infrastructure Planning Commission, Commission for Rural Communities axed The government has confirmed that the Infrastructure Planning Commission and the Commission for Rural Communities will be abolished. The IPC will become a Major Infrastructure Planning Unit inside the Planning Inspectorate.
Council could face £3.5m bill after unlawful road closure for 20 years Cumbria county council could be forced to pay up to £3.5m to reinstate a road it had illegally blocked for more than 20 years, the North-West Evening Mail has reported. A path offered as an alternative was not accessible for vehicles.
A timely boost What can local authorities do to kick-start regeneration projects in a difficult market? Lesley-Anne Avis examines their options, which include deferred purchase prices, geared leases and underage as well as overage.
Council failure to discharge race equality duties sees permission quashed The Court of Appeal has quashed planning permission for a development that would have regenerated part of Haringey after ruling that the London borough had failed to discharge its duties under the Race Relations Act 1976.
High Court hears test case over compensation for Olympic CPOs A test case has begun in the High Court over compensation payable for land compulsorily purchased for the Olympic Games, the BBC has reported. Building firm Rooff claims it should have been paid more compensation.
Government promises more freedom for councils to manage HMOs The Housing Minister has announced plans to allow councils to individually choose whether to require landlords to submit a planning application to rent their properties to unrelated tenants.
Is the grass always greener? The Welsh Assembly Government this week issued an updated national planning policy that places a greater emphasis on climate change. Environmental Minister Jane Davidson said the planning system must play its part.
An Englishman's home Robert Fidler’s mock Tudor castle was hidden by straw bales and tarpaulin for four years. His legal battles have earned headlines in the national press. Pritpal Singh Swarn looks at the background to the case.
Power to the people? Stephen Ashworth suggests that the government's new commitment to localism may not prove to be quite as radical in practice as it first appears, not least in the planning arena. A more coherent approach is required.
Welsh Assembly Government unveils new national planning policy The Welsh Assembly Government this week issued an updated national planning policy that places a greater emphasis on climate change. Environmental Minister Jane Davidson said the planning system must play its part.
New restrictions on 'garden-grabbing' and housing density target scrapped The government has announced the immediate reclassification of residential gardens, which it says will enable councils and residents to more easily refuse development requests to build new houses in private back gardens.
In or out? The Carbon Reduction Commitment came into operation on 1st April, with the registration deadline set for September 30th. Becky Clissmann looks at how public sector organisations can assess whether they are affected.
Up to speed Monitoring and reporting of carbon has typically been done on spreadsheets, but with increasing reporting frequency and complexity this approach is fast becoming unmanageable, writes Hugo Seymour.
Policy vacuum fear as Pickles tells councils to ignore housebuilding targets Planning authorities can forthwith ignore the house building totals set for their areas in regional spatial strategies, communities and local government secretary Eric Pickles has said.
Court of Appeal upholds confiscation order after planning enforcement breaches The Court of Appeal has upheld a confiscation order under the Proceeds of Crime Act 2002 for failure to comply with planning enforcement notices, rejecting an argument that a judge should look at the "net profit" earned from the activity.
Details of Decentralisation and Localism Bill set out in Queen's Speech The government has set out the details of its Decentralisation and Localism Bill, which is set to radically shake-up many aspects of council governance and responsibility and introduces a general power of competence.
Influential thinktank urges creation of new 'urban right to roam' The development of an urban right to roam could help open up heritage infrastructure for creative reuse, think tank Demos has suggested, calling on authorities to become more aware of its value as a community asset.
Hasty abolition of regional planning could threaten economic recovery: RTPI Summary abolition of major parts of the the planning system without a viable alternative in place could put the country's economic recovery at risk, the Royal Town Planning Institute has warned.
Public property The ECJ's ruling in the Helmut Muller case has provided some welcome clarification of the impact of EU procurement rules on development projects, writes Nathan Holden.
Going online The requirements for public consultation in relation to planning applications are set to change to keep in line with new forms of social media now available, write Karen Cooksley and Colette McCormack.
End of the road David Merson looks at the issues created by the mechanisms for balancing the needs of both development and access in terms of stopping-up and diverting highways and footpaths.
The long grass Paul Denham looks at how local authorities can deal with the increasingly common practice of invoking ancient laws on village greens as a means of thwarting planned developments.
In the thick of it Angus Walker looks at the new roles and responsibilities of local authorities under the Planning Act 2008 in the light of new guidance from the DCLG and the Infrastructure Planning Commission.
Playing POCA Confiscation orders under the Proceeds of Crime Act 2002 could prove a very useful tool for planning enforcement officers. Stuart Andrews, Neill Blundell and Ruth Lane explain what’s involved.
If it ain't broke...? The Conservatives claim that the planning framework is "broken" and propose a "radical reboot" of the system. Stephen Ashworth suggests that some of their proposals still need a bit of work themselves.
Heart of the matter The registration of town and village greens continues to provoke controversy, not least over its alleged use to block new development. Julian Steed looks at the practical issues for local authorities.
Ready for take-off? The use of PPAs is again being endorsed by the government, writes Benjamin Dove-Seymour. Are they now set to become a permanent feature of the planning landscape?
Government issues first-ever guidance on planning and counter-terrorism The Home Office and the Department for Communities and Local Government have issued practical advice for planners and designers in incorporating counter-terrorism measures to reduce vulnerability in crowded places.
Something in the way... A survey of waste professionals has found that most consider the planning regime to be a major impediment to reaching landfill reduction targets, writes Nigel Hewitson.
Government plans new obligations on councils to improve energy efficiency Local authorities will be required to form partnerships with energy companies and develop district heating networks, while a new Warm Homes standard will be added to the Decent Homes standard.
Rural Advocate urges housling land assessment rethink Local authorities should review their housing land assessments to take better account of rural needs and adopt a more creative and flexible approach to planning, the government's Rural Advocate has said.
Council loses garbage in garden battle A Dorking man has successfully fought off an attempt by Mole Valley council under the Town and Country Planning Act to force him to clear up piles of rubbish in his back garden.
Environment Agency consults on use of new enforcement powers The Environment Agency has launched a consultation on implementing its new civil sanction enforcement powers which include the ability to issue fixed or variable monetary penalty notices.
Tories unveil proposals to overhaul "broken" planning system The abolition of the entire tier of regional planning, a limit to appeals on local planning decisions and removal of the power of planning inspectors to rewrite local plans are amongst proposals in the Conservatives’ Green Paper on planning.
A new environment Climate change considerations are set to have a massive impact on local authority decision-making, writes Stephen Cirell, but many councils have yet to respond.
Nationwide record of common land and town and village greens delayed a year Government plans to achieve a comprehensive current record of common land and town and village greens nationwide have been delayed for at least 12 months, it has emerged.
The enforcers Developers may be looking to renegotiate – or even get out of – their s.106 obligations. Tight drafting is key to enforceability, writes Caroline Bywater.
Official Carbon Reduction Commitment user guide published The Department of Energy & Climate Change has issued a user guide for the CRC Energy Efficiency Scheme designed to help the 20,000 large public and private sector organisations affected meet their commitments.
Environmental regulators net new powers; local authorities could be next The Environment Agency and Natural England are to be handed a range of new civil powers – including the ability to impose fixed and variable monetary penalties – to help them enforce environmental law more effectively.
The art of delegation A recent case involving Leeds City Council highlights the importance of having a valid scheme of delegation in place. Jack Anderson takes a look.
English Heritage issues guidance on saving historic schools English Heritage has called on local councils to do more to preserve architecturally important school buildings.
Healey blames councils for failure to tackle "garden-grabbing" Local authorities have the powers to tackle “garden grabbing” but often fail to have the necessary policies in place to deal with the problem successfully, the housing and planning minister claimed.
HSE publishes new waste management procurement guidance The Health & Safety Executive has issued guidance on waste management procurement designed to help local authorities discharge their legal responsibilities.
Taking the strain The Infrastructure Planning Commission admits there will still be a significant demand on local authority resources. Gareth Pinwell explains why.
Coping with the CRC The Carbon Reduction Commitment scheme will bring considerable legal complexities for local authorities. Felicia Jackson reports.
A year to remember The past 12 months witnessed a raft of important environmental cases. Annabel Graham Paul and Sarah Sackman present their top 10.
Community charge The proposed Community Infrastructure Levy is meant to help deliver infrastructure that supports development. Caroline Bywater looks at the detail.
Waste aware The Waste Framework Directive requires the UK to implement waste prevention programmes and sets demanding recycling targets. Local authorities may have to re-assess their priorities, says Rhiannon Holtham.
Corby wins right to appeal against landmark environmental judgment Corby Borough Council has been given leave to appeal in a high-profile environmental group litigation case – dubbed the UK’s ‘Erin Brockovich’ – although the dispute could yet be resolved through mediation.
Village and town green registration system set for overhaul The government has revealed that it is planning to launch a review of the town and village green registration system this year, after the DEFRA received a final report on how the system is working.

See all articles in this section

Developer who disguised home as barn escapes eviction
01/02/10: A developer who admitted deliberately deceiving Welwyn Hatfield Council into granting planning permission for a hay barn on green belt land when all along he intended to build a home has defeated a bid by the local authority to evict him.

Featured Jobs

Planning Solicitor (North West) You will have a full and in-depth knowledge of local government planning and have...
Planning solictor/barrister/legal exec Weymouth and Portland Borough Council.
SEARCH OUR JOBS DATABASE More than 75 public sector legal vacancies, sorted by location, tenure and seniority....

Featured Courses & Events

Tree Preservation Orders Date: Friday, 10 December 2010 Venue: ETC Venues, London Address: ETC Venues,...
Environmental Information Regulations (EIR) Update Thursday, 09 December 2010, 10:00 - 16:00 Location: Manchester Venue: Thistle...
Environmental Information Regulations (EIR) Update Thursday, 07 October 2010, 10:00 - 16:00 Location: London Venue: Thistle ...