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LDF L&DG: Practical Issues of Soundness

Date: 7/2/2006

The LDF learning and dissemination project is working with ten pilot authorities to capture what they learn from the preparation of their LDF and disseminate that learning to practitioners.  The reports of the learning from meetings of the pilot authorities are to be found on the Planning Officers Society and Planning Advisory Service websites.

The pilot authorities met on 7 February 2006, and this bulletin sets out what came out of that meeting.  The meeting addressed two main sets of issues -

  • practical issues in relation to soundness, including consideration of the draft "LDF soundness self-assessment toolkit" prepared by POS enterprises for the Planning Advisory Service
  • recent experience and learning of the pilot authorities as they progress their LDFs

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.

Headlines

  • practical issues of soundness
  • pratice pointers from the learning of the pilot authorities

 

Practical issues of soundness 
The self-assessment toolkit

The authorities considered the draft toolkit, and the consensus was that while it can be rather daunting at first contact, in practice the user will only need to engage with those sections which relate to the current stage of preparation.  Particular value was seen in being able to progressively build up the templates for the self-assessment submission document.  The toolkit is available on the PAS website athttp://www.pas.gov.uk/pas/core/page.do?pageId=14614 .

Managing the submission process and preparing for examination

The meeting received a presentation by Horsham DC on their experience in submitting their core strategy and site allocations DPDs, and beginning to prepare for the examination.  A number of interesting points arose -

  • Not withstanding considerable efforts to get developers, groups and individuals to make representations at preferred options stage, over a third of representations at submission stage were new rather than repeats or confirmation of representations at preferred options stage (nearly 3400 representations altogether)
  • Despite workshops with developers, agencies and community groups explaining how the examination into soundness will work, very few representations addressed the tests of soundness, but simply submitted "old-style" local plan type objections, including a large number of multiple objections
  • Only one in ten representations were made online
  • Only one in ten representations were correctly completed
  • Planning professionals and national/regional bodies were no better at providing properly-framed representations than lay people - this even applied to adjoining local planning authorities!
  • Common weaknesses were failure to identify which policy or paragraph the representation related to, failure to supply a site plan where an alternative site was put forward, and representations which could not readily be related to anything in the plan (suggesting that those making some representations had not actually read the plan)
  • Consequently some six weeks of intensive effort was required to identify the different points of objection, and take a view on which test(s) each representation should be related to
  • Officers at Horsham also found that when they tried gently to get people to address the tests of soundness, this was sometimes interpreted as an attempt to create impediments to their right to object

While such experiences are frustrating, the general view was that we should not be surprised, and that it will take a significant time before fellow-professionals and public bodies can be assisted to grasp the concept of soundness and frame their representations accordingly.  And of course there is no power for the planning authority to reject representations because they have not been made in the right form.  There is the further implication that Inspectors are likely to have to guide lay people who are heard at examination and interpret which tests the points they make in evidence relate to.

It was noted that some authorities' LDSs allow scant time between submission and the opening of the examination.  While PINS will undertake to provide the Inspector and begin the examination within six months of submission, they have stressed that this presumes that the authority has in place robust arrangements to meet such a timetable.  The authority will need to allow for -

  • early production of the summary of representations received
  • a completed database for every point of representation
  • prompt advertising of alternative sites put forward (in the case of allocations DPDs) so that third parties can consider whether to make representations upon them
  • swift production of the summary and database information for such representations
  • an approach to proofs of evidence which enables them to be substantially completed well before the planned opening of the examination.

It is recommended that in project planning, especially when reviewing the LDS, authorities should build up a realistic estimate of the time needed between submission and opening of the examination.  This should take account of the statutory deposit period, the time likely to be needed to analyse and tabulate representations (referring to the experience at preferred options stage), time needed to prepare or finalise proofs of evidence, and the mandatory notice periods for the pre-examination meeting and the examination itself.

PINS approach to Government Office representations

It is a function of the Government Offices acting on behalf of the SoS to review emerging DPDs and advise the planning authority of any concerns about either compliance with the statutory requirements or significant issues of soundness.  This may in some cases result in the Government Office  making representations on the submitted plan.  Having in mind that the PCPA 2004 stipulates that a DPD must not be submitted unless the statutory requirements have been complied with, PINS seeks to avoid the situation where a DPD goes forward to examination where there is a strong likelihood that it will be found to be unsound.

IT is possible that in such situations the Inspector may call an early meeting with the planning authority and the Government Office.  This is an open meeting, which any other party interested in the DPD may attend having notified the Inspector.  The meeting will explore the concerns raised by the Government Office, and consider what means there may be to resolve the concern.  This may involve for instance the planning authority taking further action to address an identified procedural issue, or the provision of further evidence, or a conclusion by the Inspector that it is appropriate for the DPD to go forward to examination.  This approach is not limited to representations by the Government Offices, and may be instigated by the Inspector with any party making representations. 

Such arrangements are assisted by the fact that under the new system, the examination commences with submission and ends only when the Inspector submits his or her finalised report, so that there is scope (subject to the rights of other parties) to address issues of procedure and compliance other than within the hearing itself.

Soundness and the examination: questions and answers

In discussion, a number of questions arose about aspects of soundness and how authorities might address some of the tests.  These are presented here as questions and answers for convenient reference.  Reference is made to relevant soundness tests.

Question: We have a draft SCI, but expect to submit a DPD before the SCI, and the DPD is likely to be examined before the SCI is adopted.  Will the examination consider Test 2 in relation to the draft SCI or be restricted to the minimum requirements set out in the Regulations?

Answer:  In preparing the draft SCI the authority has set out how it plans to go about community engagement, so it is logical that the Inspector should consider whether the authority has complied with its expressed intentions.  Since the minimum requirements set out in the Regulations must be incorporated anyway into the SCI, considering whether the draft SCI has been complied with should automatically cover the minimum requirements also.

Question: It has been suggested that to ensure its objectivity the sustainability appraisal should be carried out by a consultant or another department which is independent of the LDF team, or externally verified by an independent party.  Is this correct?  (Test 3)

Answer: There is no need for independent production or verification, and indeed the suggestion carries a misunderstanding of the role of sustainability appraisal.  Sustainability appraisal is not some form of separate check on the validity of the DPD, but should be a central feature of its production, and highly influential in decision-making.  It follows that the LDF team must understand fully the methodology and judgements made within the SA to be able to reflect them properly in making recommendations.  They will achieve this best by either preparing the SA themselves or by being closely involved in its preparation.  However, there is value in external validation that this key evidence has been prepared thoroughly and well.  The ODPM sustainability appraisal guidance at paragraph 1.14 suggests that it is helpful to involve others "who can contribute expertise or a detached and independent view".

Question: To what extent can we expect the Inspector to scrutinise the methodology and robustness of the sustainability appraisal?  (Tests 3 and 7)

Answer: The Inspector's first concern will be to satisfy him or herself that a sustainability appraisal has been prepared.  So long as this is the case, it is considered unlikely that the Inspector will delve into the quality of the sustainability appraisal. The Inspector is not required to examine the sustainability appraisal as a separate exercise.  Rather, the emphasis will be on how its findings have influenced decisions on the preferred options and the finalised submitted DPD.  Only if an objector seeks to argue (with supporting evidence) that the sustainability appraisal is so flawed that its conclusions are unsafe is the Inspector likely to examine the methodology and content in any detail, and even then may be expected to focus on the evidence provided rather than personally initiate a forensic investigation.

Question: Will the examination address the extent to which the sustainability appraisal and its findings are reflected in the submitted plan and the consistency between them?  (Tests 3 and 6)

Answer: Yes.  The conclusions of sustainability appraisal should be a significant factor in shaping the decisions made in formulating the strategy or key decisions (as the case may be), and it may be expected that the Inspector will inquire into this.  It is legitimate for the authority to decide to pursue an option which does not perform as well as others in sustainability terms, because elected members consider it to be in the best interests of the area, eg because they attach greater weight to strengthening the economy than to social or environmental considerations.  However, they will need to be explicit about the reasons for their decision, including the evidence considered.  What is likely to cause the Inspector concern is where there are inconsistencies for which no good reason can be demonstrated by the authority, or no evidence that the sustainability appraisal has been used to highlight the sustainability implications of each option and how they can be improved or mitigated.

Question: How can the plan-making process deal with an emerging contentious RSS strategy?  (Test 4)

Answer: As with the previous system, the formal situation is that the weight to be attached to emerging policy depends on the progress made towards its finalisation, so that for example an RSS which has been submitted will carry more weight than a consultation draft.  It will be available to an authority to progress a core strategy which conforms generally with the draft RSS, but it will be necessary to weigh the risk that the RSS may yet change in a manner which would leave the plan no longer in general conformity.  It may be expected that an Inspector would be uneasy about recommending adoption of a core strategy while aspects of the RSS which were fundamental to it were not yet finalised.  It should be kept in mind that PPS12 makes the point that the test of general conformity is not met when significant harm is done to the implementation of the RSS.

Question: What about where new national planning policy is emerging which could affect the content of a DPD at the time the DPD comes to examination?  (Test 4)

Answer: again the issue will turn on the current position with the emerging policy.  If it is at a very early stage at the time of the examination, it is likely that so long as the prospective new policy did not go to the heart of the plan the Inspector would recommend that the DPD be adopted without taking it on board, but recommending that the issue should be addressed at review of the plan.  Should the national policy then go ahead as first indicated, it will of course enjoy considerable status as a policy consideration in development control. 
However, where there are indications of a significant change in national policy which would considerably affect the plan, the Inspector might not consider it safe for the DPD to be adopted without taking it on board.

Question: Despite repeated efforts, we have had considerable difficulty in getting the local strategic partnership to engage with the preparation of the core strategy, because they have a very busy work programme and can only allocate infrequent and brief slots at their meetings.  Consequently we have not been able to influence the content of the community strategy to provide a clearer local context for the LDF.  Will this present us with difficulties in showing that the core strategy has had proper regard to the community strategy?.  (Test 5)

Answer: The strict interpretation of Test 5 is that in preparing a DPD the authority has had regard to the community strategy as it stands at the time.  Thus, while the LDF team might aspire to a more developed relationship with the LSP, and a process where development of the core strategy and review of the community strategy inform and influence each other, at the minimum it will be sufficient to show how what is included in the community strategy is positively taken on board.  It will also be advisable to provide the Inspector with evidence about the efforts made to engage with the LSP.  This presumes that the barriers to effective engagement with the LSP are not internal within the Council, because if there are indications to this effect supported by evidence, the Inspector may have difficulty in relation not only to Test 5 but also Test 4 that it is a spatial plan.

Question: How do all the processes of DPD preparation and examination relate to the authority's own corporate processes? 

Answer: This cannot really be answered in the generality, but needs to consider the particular processes of the individual authority.  However, what can be said is that early in the LDF programme the planners need to get access to senior management to explain the LDF task and its implications, and consider how the procedural requirements of the DPD preparation process can best be fitted together with corporate processes.  This is more likely to be successful if the Chief Executive, Directors and senior members are persuaded that the LDF offers valuable opportunities which should be taken on board, with a consequent willingness to make some adjustment to corporate processes to make the two fit well together and enable expeditious progress.  There is likely to be potential for addressing the fit between corporate and planning processes in connection with the comprehensive performance assessment and local area agreement agendas.

Question: Do we need to be able to show at examination that alternatives were expressly considered in the preferred options report, or will it be sufficient to be able to show that they were considered in the sustainability appraisal or other documents?  (Test 7) 

Answer: PPS12 says that authorities should set out clear reasons for their selection of the preferred options together with a précis of the alternatives that were also considered.  The soundness self-assessment toolkit reflects the central importance of considering and evaluating alternatives within  the DPD preparation process.  If the authority cannot show that alternatives were considered and evaluated, and reasons given for selecting the preferred options and rejecting other alternatives, it will have considerable difficulty in arguing that it has met statutory requirements, let alone Test 7.  The Inspector will wish to be satisfied that the alternatives were expressly put in front of stakeholders in the participation on the preferred options, as against being there to be found if they only knew where to look. 

It may be good practice to include the highlights of evidence within a DPD rather than simply treating preferred options report and other main documentary evidence as read.  Hambleton have addressed this by putting examples of key evidence from the sustainability appraisal and key messages from consultation in boxes in the relevant text.

Question: We are experiencing difficulty in identifying the appropriate indicators for monitoring delivery of the core strategy in advance of the allocations and development policies DPDs and the indicators which will be identified in relation to them.  Is this likely to give us problems at the examination in relation to Test 8 "There are clear mechanisms for implementation and monitoring"? 

Answer: It is suggested that the way to deal with this is to adopt those indicators which can be identified safely at core strategy level, and be open about the issue in the evidence provided to the examination.  It will be desirable to be able to show the process and timetable for developing indicators through the work on the other DPDs.  Just as further DPDs are themselves key tools for the delivery of the core strategy, so it must logically be appropriate for them to be used to develop the monitoring machinery.

Question: In relation to Test 9, how can we demonstrate that the plan is reasonably flexible? 

Answer: This can be addressed in several ways.  The process of evaluating alternatives at preferred options stage can take explicit account of flexibility, having regard to the key question in the PINS guidance "Is the DPD flexible enough to respond to a variety of, or unexpected changes in, circumstances?"  This could include considering whether proposals depend on infrastructure whose delivery is uncertain, or where a change of policy or programming by the provider agency could lead to their provision being shelved or delayed; consideration of some reasonably foreseeable changes in circumstances such as lower or higher rates of economic growth; and examining representation from partners, developers or others which point to delivery risks.

The authority could carry out a risk analysis of the overall strategy put forward by the DPD, to identify risks and consider what effect they might have and whether the strategy could readily adapt to manage them or otherwise.  A further option is to carry out a sensitivity analysis, which would review the key assumptions underlying the strategy, and consider whether changes in them would actually lead to substantial impacts which would be likely to demand significant change in the strategy, or modest impacts which would require little or no adjustment.

Question: How can we bring forward a strategy which is bold and aspirational when the infrastructure funding regimes are so short term and often uncertain? - (Tests 8 and 9) 

Answer: Some concerns have been expressed that a bold and imaginative strategy, aiming to secure significant improvement in the area, could carry with it significant risks, and that this might lead an Inspector to respond to representations against the strategy by recommending changes to a "safer" approach which would not offer the same potential benefits.  But of course spatial planning is intended to be a proactive and driving activity, which must include the possibility of  preferring a strategy which aspires to the best rather than the safest outcome.  In such a case, it is suggested that the planning authority would need to be open about the fact that it has chosen a bold strategy for good reasons, is aware of the risks and the potential implications, and has considered how it would respond to key foreseeable risks.  The authority would then contend at the examination that its strategy has such virtues that it should be allowed the opportunity to succeed, and show clear evidence that there is substantial commitment on the part of the authority and its partners.  The delivery of the strategy would of course be monitored to take corrective action if necessary, but at the same time if key features were not coming forward as planned, the authority would accept the need to review the strategy and ask whether it is still achievable or a change of policy direction has to be undertaken.

 

Practice pointers from the experience of the pilot authorities

Statement of community involvement - Coventry experienced significant delay in their SCI due to a few groups being keen to ensure that from their point of view consultation works better in future, especially in relation to planning applications.  They had continuing differences on the approach to be applied, with different priorities expressed by different communities of interest.  The business community want speedy decisions, whereas community groups want extended periods of consultation on specific development proposals.  Having in mind the pressures for speedy decision-making in both Best Value and CPA, the fundamental approach of the revised SCI is to seek to front-load consultation into policy formulation (including site allocations), and then into pre-application consultation in respect of specific development proposals.

Barking and Dagenham's draft SCI consultation went particularly well with a lot of positive feedback.  This may be because they used Groundwork who are specialists in Community Development work and were excellent at going back to the community groups who made input during preparation of the draft SCI and saying 'You told us this, and this is how we have responded'.  This is seen as offering a wider lesson when authorities consult on preferred options reports.

New Forest found that the SCI opened up opportunities to make representations on very detailed aspects of the development control process.  Two objectors in particular have pressed to be heard by the Inspector before agreeing to have their representations dealt with by written representations.

In the light of the experience of pilot authorities, care should be taken over which specific groups to include in the statement of community involvement.  For some DPDs it may be may be more effective to target a selection of groups and back this up with more broad samples if needed, eg the citizens' panel.  The SCI would need to explain that the stated groups are the minimum and the authority may also consult others.  This will avoid the difficulty of being tied for each DPD to an SCI which requires the authority to consult all groups on all matters, and the frustration this can generate among them.

Issues around engagement - Barking and Dagenham have found that consultation worked best where organisations have had the planners back for a second more detailed focus group session, eg with the Refugee Forum and Local Agenda 21 group.  However, many groups do not have the time or resources to get involved at the more detailed level and hence beyond giving a 15 minute presentation the planners have not really been able to do more than scratch the surface in terms of meaningful feedback.  There is a real resource issue involved in getting the necessary feedback and in many cases neither the authority nor stakeholders are geared up to be able to go to the level of detail they would wish. 

Also there has been a real issue of people saying 'We've heard it all before, we don't want consultation, we want participation'.  Some people see the LDF as yet another tick box exercise and believed their views would not be taken on board, and feel many of the big choices have already been taken.  Such attitudes are difficult to overcome.  There are some exceptions - particularly in relation to sustainable design policy where the authority received a lot of ideas and positive feedback.

Hambleton found that Regulation 25 consultation on an allocations DPD presents difficulties where the core strategy has not yet been adopted.  This is because no sites can be excluded from consideration on the grounds that they are in conflict with the core strategy (though of course higher level policy in the RSS or saved structure plan policies may be used to filter out sites which are in diametric conflict with policy).  Hambleton had some 500 sites submitted for consideration by landowners and developers initially, a further 100 plus through issues and options consultation, and more being raised as they work through the preparation process.  Appraising such large numbers of sites in sustainability appraisal and against policy considerations is time-consuming, and it is very difficult to get detailed and useful responses on such large numbers of sites from key consultees such as the Environmental Agency and the County as Highways Authority.  Hillingdon also found that capacity issues among statutory consultees led to delays in getting their responses which affected the work programme.

Hertfordshire have also had a large number of potential sites identified, in their case in a waste LDF.  They found it advisable to add an additional, informal stage of consultation, to inform work towards the preferred options.  This is expected to have a knock -on effect on the timetable.

Sustainability appraisal - New Forest have carried out preparatory work for their LDF alongside the setting up of the new National Park Authority.  They are preparing a common scoping report and appraisal framework which will set the basis for SA of any strategies prepared by the Council or the National Park Authority.  Their main lesson from the experience is the necessity to translate the complicated advice issued by ODPM into a practical, realistic and understandable methodology.

Barking and Dagenham have worked to develop policy options.  As part of this they learnt of the need to set out the evidence base and thinking behind different options to inform the initial SA work, and to ensure that there is a shared understanding of the assumptions made between the LDF team and their colleagues preparing the SA.

Community strategy - Coventry have undertaken a series of meetings with theme groups of the local strategic partnership and other networks in order to identify problems and issues facing the City. This process led up to an independently facilitated visioning event of corporate and sub-regional colleagues, aimed at producing a spatial vision for the City in 2021 and to consider key change areas to move towards that vision.  The material from the network meetings and the visioning event will feed into an Issues and Options document for wider consultation and probably into later DPDs.  This has been a lengthy process, and longer than envisaged in the first LDS, but It was considered to be useful in "front-loading" the identification of issues for the City and also in making that identification process wider than the City Council.

After early difficulties in getting the local strategic partnership engaged, Colchester are now building links, and have met the LSP to consider how to use their meetings to promote the core strategy documents.

The proposals map - Hambleton's emerging development polices DPD contains designations and policies operating within particular areas, which need to be shown in map form.  However, these only show part of an emerging picture, because an allocations DPD is also being prepared, and it is difficult for the public (and the planners for that matter) to see how it will all fit together in the proposals map.  While excerpt maps can be used in consultation, it is a legal requirement that the proposals map is revised as soon as a DPD is adopted which contains policies with operative areas or allocations, or which have spatial implications and do not cover the whole plan area.  Where several DPDs are to be produced in sequence, this will lead to considerable work and cost in repeated mapping, license fees and production, though in-house ICT can reduce the burden.

Supplying documents at submission stage - Hambleton have had difficulties in deciding which groups should be sent copies of the submission documents as "DPD Bodies".  The latter are defined by the Regulations as all the bodies consulted under Regulation 25, which can be very extensive.  Discussions with PINS suggested that supply of hard copy documents could be limited to General and specific consultees only, but General consultees are not specified in the draft SCI nor in the Regulations.  This does point to the need to keep documents concise, and ensure that only the relevant supporting documents are sent to each body.  Clear information should be provided as to where other documents can be inspected or obtained.

Publishing and printing costs - Horsham have previously reported on the high cost and work involved in copying large numbers of documents for deposit in libraries and the like.  Hambleton have found that they have had to produce some 400 paper copies of each DPD, together with copies of consultation statements, the sustainability report, and background documents.  While they are using CDs as far as possible, many consultees do not have the capability to deal with, or do not wish to receive, electronic documents.  This is particularly the case with the numerous Parish Councils in Hambleton.

 

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