The pilot authorities met again on 8 November 2004 to explore two particular sets of issues:
HEALTH WARNING - The material here sets out the broad conclusions which came out of discussion with the pilot authorities, and represents an early view of what seems to be sensible practice. It is not presented as good practice at this time, because the test of that will only come when it has been applied in reality and can be seen to have worked.
The results of the 8th November meeting are listed under the following headings:
Planning for sustainability appraisal of several local development documents
Overall concerns - Concerns were expressed about the difficulty of trying to prepare LDDs and comply with sustainability appraisal requirements when the draft guidance on sustainability appraisal and strategic environmental appraisal has only recently been published. The notes which follow seek to address some of the issues raised by the pilot authorities, but this is an area where further, authoritative advice and guidance is desirable.
Joint working - Given that most authorities will have a lot to do and learn in successfully tackling sustainability appraisal, there is likely to be value in joint working with neighbouring authorities. Possibilities for joint activity include -
There is potential value in having common approaches with neighbouring authorities when it comes to the development of the sub-regional component of the regional spatial strategy, and in having a set of peers who are using the same approach and are therefore available to take advice or sound out thinking. But be conscious that there are some risks in making joint arrangements.
The programme approach - It is suggested that at the outset of LDF work, consideration is given to the broad approach to be taken to the programme of sustainability appraisal for the whole suite of LDDs which will make up the LDF. This will mean that information gathering for the base case for the first LDF will be informed and influenced by awareness of likely information requirements for subsequent LDDs, and should offer several benefits -
It is recognised that some authorities which need to make progress on replacing an out-of-date development plan, will be tempted to speed progress by focusing on only the information and appraisal framework required for the first LDD. This may be understandable, and is a matter for individual authorities. However, it should be recognised that it is likely to lead to more work overall and consume more staff time in the medium term.
Drawing on the sustainability appraisal of higher-level plans - As the programme of LDF production progresses, it will be important to take proper account of sustainability conclusions reached in relation to the planning tier above. Since the LDF must be in broad conformity with the regional spatial strategy, it is not necessary to re-appraise within the sustainability appraisal of a LDD those aspects of the RSS which bind the LDF. The same applies to the core strategy relative to other development plan documents, and to development plan documents and the supplementary planning documents which derive from them.
Thus, as one would expect in progressing through the plan hierarchy, the issues examined in sustainability appraisal will become progressively less strategic in scope and more to do with the detail of specific impacts. Thinking about this at the beginning of LDF preparation should help in identifying when it will be timely to begin collecting different types of information in preparation for later sustainability appraisal.
To ensure compliance with the SEA Directive, each sustainability appraisal report should be self-contained, i.e. it should set out clearly how the appraisal has operated for that LDD and, where information has been drawn from the appraisal of a higher level plan, the information used and its effect upon conclusions.
Collecting baseline data -In identifying what information should be collected as part of the baseline situation, it is suggested that consideration is given to -
Explaining the significance of sustainability appraisal - The central position and importance of sustainability appraisal in the new system will be new to colleagues, elected members, partners and local communities. This makes it important to ensure that people understand both the broad principles of sustainability appraisal and its significance in decision-making, well in advance of the time when sustainability appraisal reports begin to emerge.
While all parties will need such understanding, it will be especially important to communicate it clearly to elected members, and not just those on the cabinet, since the ultimate decisions will rest with the full council. Whether we may wish it or not, it is likely that sustainability appraisal will take on a political dimension, because it will be a significant determinant of decision making. Members will be justifiably unhappy if, at an advanced stage in the development of the plan, they are told that they cannot do what they want to because it will conflict with a report published earlier in their name. That could also lead to suspicion that sustainability appraisal is being used to control and manipulate them.
It is suggested that as part of bringing elected members up to speed on sustainability appraisal, there should be explicit agreement with them on how and when sustainability reports will be considered and approved by members.
Screening out non-starter options - An issue was identified about how to decide which options should be considered for sustainability appraisal. In some local authority areas, especially rural authorities, there are numerous villages which could be considered for expansion in the core strategy, and thousands of fields and other areas of land which could theoretically be considered for allocation for housing or other uses. The reality of course is that most such sites will not even be considered in preparing the plan, because they would be in conflict with important planning policies or principles. As part of the sustainability appraisal process there clearly needs to be a parallel process of focusing only on locations or sites which have realistic potential in both policy and practical terms, otherwise the appraisal process will be unmanageable and immensely resource hungry.
It is suggested that this should be addressed explicitly at the scoping stage, by identifying and applying the planning policy considerations which will exclude "non-runners" from further consideration, and allow attention and resources to be concentrated on those which are genuine possibilities. This would be carried out as distinct action at the same time as scoping, but making it clear that it is a separate process of policy-based screening.
While this approach is logical, it is recognised that the process could be contentious and may attract objections on the basis that the sustainability appraisal is flawed due to excessive pre-judgement as to the options to be considered. It would appear to be an area where further guidance is needed.
Sustainability appraisal of the plan as a whole - Another issue discussed was about the extent to which the sustainability appraisal should consider individual proposals and policies of the plan. The key point appears to be that sustainability appraisal, being a development of strategic environmental appraisal, should be concerned with the plan as a whole strategy rather than its individual policies. This suggests that appraisal should focus on the impact of the overall strategy as a whole and the broad strategic options, rather than looking at each policy or proposal in detail. However, it is recognised that most of the pressure for change will generally be in relation to land allocations (especially for housing), so the appraisal will need to consider the sustainability performance of at least the larger allocation sites so that relevant evidence can be provided at the examination. It would also seem desirable to appraise the impact of those key policies around which the strategy pivots.
A further implication relates to the number of polices and proposals in the plan. ODPM advice is firmly to restrict policies to those which are genuinely necessary to achieve the plan strategy, and rely on national planning policies in PPSs/PPGs and a few generic development control policies to cover most issues. Following this advice would appear likely to reduce the scale of sustainability appraisal, and diminish the scope for time-consuming debate about the impact of numerous policies.
The preferred options stage - There appears to be some confusion as to just what needs to be covered in public consultation at this stage. It is suggested that this is where the requirements in relation to the plan preferred options and the sustainability appraisal differ. The development plan regulations do not refer to consultation on options, only on the preferred options. This means that in consulting on the LDD, the planning authority will need to set out why in formulating the plan it prefers one array of options over the alternatives, but it does not have to actually consult on those alternatives. However, to conform with the SEA Directive, the sustainability appraisal does have to describe what the planning authority considers to be the key choices in terms of options, how they perform against its appraisal framework, and implicitly how they perform against each other.
Developing sustainability objectives for a waste LDF - experience from Hertfordshire
Hertfordshire County Council held a stakeholder workshop to help them develop their sustainability objectives, with the help of consultants. They found it difficult to distinguish sustainability objectives from plan objectives, but were advised by their consultants that they should. This may seem to run counter to the ambition of many authorities to ensure that their LDF is the most sustainable plan possible, which would tend to suggest that the plan objectives should be the same as the sustainability objectives. There appear to be two reasons for having separate suites of objectives -
The appraisal of the plan objectives is, of course, a specific activity in setting the sustainability framework, and this will show up where there may be tensions between plan objectives and sustainability objectives.
Hertfordshire have introduced an additional stage into their LDF preparation process, involving consultation on options without identifying preferred options. The options were subject to sustainability appraisal, which was reported upon as part of the consultation process. They are now evaluating how to carry out further sustainability appraisal, including the extent to which it will be done in-house or through their consultants. They comment that they are finding sustainability appraisal a highly iterative process.
Apart from these sustainability learning points, Hertfordshire reported that GO-East have asked them to provide a brief risk assessment of their LDS. This seems sensible practice generally, since awareness of the main risks from the outset should lead to approaches which are more likely to avoid or reduce them.
Managing community engagement in the new system
There are a number of parallels here with the outcomes of the discussion on sustainability appraisal. Again it is suggested that there should be a programme approach to engagement, and also that consultation findings from higher level plans can be drawn on in the preparation of subsequent LDDs.
A programme approach - The new system carries with it the risk that local communities will experience consultation fatigue as the authority works its way through several LDDs each of which involves two statutory stages of consultation. This makes it desirable to design the programme of consultation over the various LDDs so as to obtain the information required without extensive repetition of consultation. It is suggested that consultation should be planned in outline as a campaign which will cover all the LDDS, and then developed in detail for the first. Apart from reducing the likelihood of consultation fatigue, this should offer benefits in reducing the amount of work overall, because -
Drawing on consultation on higher-level plans - It also makes sense to treat relevant consultation on higher level plans (particularly the core strategy and DPDs upon which supplementary planning documents will hang) as, part of the consultation framework for the current LDD. This will reduce the amount of new consultation which needs to be carried out, and help to join up engagement in a way which should make the process more comprehensible to local people. It should be kept in mind that to meet the requirements of the SEA Directive and provide coherent information for the plan examination, it will be necessary to cover in the sustainability report all the consultation which has been taken into account in making choices.
Integration with consultation on the community strategy - There are clear opportunities for economy and maximising the use of available resources in integrating consultation on the LDF, especially the core strategy and allocations DPD, with that on the community strategy. Rather than referring to the particular plan being prepared, it may make the consultation more meaningful to local communities to describe it as consultation on what people consider important to their quality of life. Since there will be issues with both the community strategy and the LDD which are distinctive to them, it is likely that there will also need to be some separate consultation geared to the needs of each.
Starting from the current position - While there was some debate over this, most of the pilot authority representatives feel that it is more honest and practical to make it clear that the current situation is taken as a given. Consultation can then focus on the real choices available which people can influence, rather than suggest that there is a clean sheet and all possibilities are open to be considered. At the same time, the authority will need to take care that feasible but more radical strategies are not ruled out in advance, otherwise the plan choices will tend to be restricted to the continuation of the status quo.
Approaches - In terms of the approach to be taken to consultation, some useful points were made -
Explaining how it works - It will be important, given that people are having to engage with a new system to explain both the overall process and the opportunities it provides to influence the resultant plan. In particular, they will need to be helped to understand the concept of front-loading, and the need to make effective representations earlier in the process than was the case with the old system.
Practical challenges of a joint waste LDF - experience from Barking and Dagenham
The London Boroughs of Barking and Dagenham, Havering, Newham and Redbridge are covered by the East London Waste Authority. Because of the need for a coherent waste strategy for the area they have begun to come together with a view to producing a joint waste LDF. That would offer a number of advantages -
However, preliminary discussions between to prospective partners at officer level have identified a number of potential problems which would have to be overcome to deliver a joint waste LDF -
Taken together, these risks could make it very difficult to get or consensus timely decisions at the successive decision stages, and in particular there is the risk that progress will only be made at the pace of which ever authority is the slowest at a particular time. It will be interesting to see, as the new system unfolds, whether clusters of authorities will come together to prepare joint LDFs, or whether they will prefer to work at sub-regional level (whether formally through the Regional Planning Body or more informally)to provide a strategic framework which will then be taken forward through separate LDFs.
Some practice pointers
The discussion among the pilot authorities brought out a number of matters which may point towards successful approaches or assist in planning for LDF production.
Using the "jumping the gun" provisions - The Regulations allow for steps carried out before the operative date to count as if they had been undertaken subsequently, provided that what was done conformed with the final form of the Act and the Regulations. These are known colloquially as the "jumping the gun" provisions. There is, of course the opportunity for third parties to argue that what has been done did not comply with legal requirements, either by making representations that the plan is procedurally unsound or by High Court challenge. Authorities which are considering relying on this provision should ask themselves two questions -
If there are significant doubts about either, it is probably not prudent to seek to rely on these provisions, because the LDD could be at a very advanced stage before a formal challenge arise, or the Inspector at the examination comes to consider the soundness of the LDD in terms of compliance with process requirements. This is an area where the advice of the legal department will be important, and where it would also be prudent to discuss the issue with the Government Office.
Bringing forward a new LDD not in the LDS - The question has arisen as to whether the new system offers the flexibility to respond to a new opportunity or problem by bringing forward an additional LDD, or whether the local development scheme will be a barrier to such flexibility. Certainly, no LDD can be prepared unless it is first included in the LDS, but the latter can be readily changed by resolution of the local authority. Where all that is being added is an additional supplementary development document, it should be sufficient to have a brief conversation and exchange of messages with the Government Office to keep them in the picture. However, if the change would be more material, especially if it was planned to change the pattern of LDD preparation, there should be early discussion with the Government Office and the Planning Inspectorate.
Capacity of the Planning Inspectorate - There have been misleading reports that the Planning Inspectorate does not have the capacity to cope with LDD examinations, and that plan programmes in local development schemes must therefore be reduced so that they can cope. The position of the Inspectorate and the ODPM is that if an authority has prepared an LDD and given the appropriate notice to the Inspectorate that an Inspector is required, an Inspector will be provided. What is actually more important is that the content of LDSs is carefully considered with a good appreciation of the new system and the practical capacity of the planning authority for delivery.
Service Level Agreement with PINS - There is a further misunderstanding that a full service level agreement with the Inspectorate is required as part of the local development scheme. What is actually required is agreement with them on the development plan documents to be prepared and the anticipated key dates relative to the examination. The full service level agreement will only be prepared when the planning authority formally requests the appointment of an Inspector.
Use of SPG for sites in an abandoned local plan review - The issue arose as to whether supplementary planning documents or other material can be prepared to guide development on sites included in a draft local plan review which was abandoned in favour of going over to the new system. Clearly, supplementary planning documents cannot be prepared for sites from the draft plan because SPD must be derived from a development plan document, and the draft local plan was only a material planning consideration The pragmatic answer is that decision-making cannot stop pending the preparation of the LDF, and therefore the planning authority is entitled to make decisions on the basis of such material considerations as exist, including the proposals in the draft plan. It is also reasonable for the authority to seek to influence the quality of the development by preparing some more detailed informal guidance for the more significant sites. This is not to be taken as a general recommendation to prepare informal guidance in circumstances where proper supplementary planning guidance could be prepared, but rather a response to a particular and temporary situation in the transition from the old system to the new.