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This newsletter gives an update of noteworthy planning measures, guidance and decisions that have occurred during winter months of 2009/2010.

Specifically, we comment upon:

  • Draft National Policy Statements relating to energy and ports 
  • Consultation Paper relating to changes to the English planning system
  • Planning Policy Statement 4" Prosperous economies"
  • PPS25 Development and Floodrisk - update of the practice guidance.
  • "Garden Grabbing"
  • Flexible Planning Permissions: New Guidance and Fees
  • Cross Rail - Levy update

It is evident from these measures that the Government is still pressing on with its agenda of implementing the proposed changes to the English planning system as recommended by the Killian Pretty Review and also taking forward the key role that the Infrastructure Planning Commission now has in determining major infrastructure projects since October 2009.

Draft National Policy Statements relating to energy and port

Energy and Climate Secretary, Ed Millband announced on 9 November 2009 six draft national policy statements (NPS) for public consultation in relation to

  • Fossil fuels,
  • Nuclear Energy,
  • Renewables,
  • Transmission networks
  • Oil and gas pipelines
  • Development of Clean Coal.

A seventh NPS on Ports was announced separately by the Secretary of State for Transport, Lord Adonis.
The draft National Policy Statements (NPSs) will be the basis on which individual planning decisions are made from March 2010 by the new Infrastructure Planning Commission (IPC).

Speaking to House of Commons Ed Millband said that in order for the Government to meet its commitments to reduce carbon emissions for 2020 and beyond, it was necessary to reform the planning system which is characterised by "duplication with several bodies responsible for different aspects of consent, overlapping responsibilities of politicians and independent decisions makers and delay."

The Energy and Climate Secretary added that :

"Renewables are a home-grown and plentiful source of supply, already powering two million homes in the UK;
nuclear is a proven, reliable source of low carbon energy: an important baseload in the system and fossil fuels, with carbon capture and storage, will enable flexible peakload response.

Last year we saw offshore wind generation increase by two thirds and onshore wind generation by one quarter. But we need to significantly increase the rate of progress to meet our objective of 30% of our electricity coming from renewables by 2020."

Taken together these National Policy Statement represent the Government's a framework for the future energy supplies.

Also in speech to the House of Commons on 9 November, the Secretary of State for Transport, Lord Adonis introduced the draft NPS relating to Port development. Lord Adonis stated that:

"The draft National Policy Statement for ports sets out the broad need for ports capacity looking ahead to 2030 and beyond, taking account in particular of our forecasts of port freight demand and the regional and local economic benefits of port activity. It also restates the Government's long-standing policy that this need can be best be met by an efficient and competitive ports industry operating in a free-market environment."

"It further sets out, in the context of the Government’s overall objectives for sustainable development, including mitigating and adapting to climate change and the achievement of good design, how the various potential adverse impacts of port development should be addressed by applicants with a view to avoiding, mitigating and where necessary compensating for such impacts. It notes how ports can support the development of low carbon energy sources and a low carbon economy. And it provides guidance about how the Infrastructure Planning Commission must weight any residual impacts in considering applications for nationally significant port developments, including in setting requirements and agreeing obligations for consented developments."

The draft NPS on ports is structured in two parts. The first part sets out the Transport Department's policy regarding the need for additional capacity in the port sector. The second part outlines the Department's policy on the weight to be given to different impacts when assessing individual development applications. It outlines what the Department considers to be the potential economic, environmental and social impacts of port development, defining the acceptable limits of adverse impacts and explaining the levels of mitigation likely to be required depending on local circumstances. In so doing the NPS seeks to integrate planning policy guidance given by Communities and Local Government - such as PPS4 as highlighted in this newsletter.

Key points of draft NPS on Ports are:

  • The NPS forecasts growth in demand over the next 30 years for port development, particularly in the container, ro- ro and non unitised sectors.
  • The NPS considers that capacity consented in the last 5 years is expected to roughly match growth in national demand for container movements over the next 20 years. However, there still needs to be expanding capacity of the UK's ports at a wide range of locations.
  • Increased port capacity needs to be in the "right quantities, in the right places and at the right times."
  • However, the NPS states that "the market is a better mechanism for getting this right than the state..our policy is therefore not locationally directive, and leaves it open for port developments to come forward where and when the market considers necessary."
  • There is no point "having capacity in the right quantities, in the right places and at the right time if the infrastructure connecting the ports to the national network is not performing effectively." The NPs therefore identifies 14 national corridors that are considered to be of strategic importance for connecting England and Wales key international gateways with the 10 biggest conurbations and refers to existing departmental guidance on how these inland connections should be determined and funded and the importance of an objective Transport Assessment.
  • Ports should support national and regional economic growth but at the same time help reduce green house gases and preserve the natural environment.


The draft NPS on ports has left it to the market to determine where new port locations should be and where schemes are proposed these need to be assessed against the context of need for additional facilities and absence of alternative locations to meet that need.

This a major omission as the major port operators are in competition with each other to improve and provide additional facilities and the industry is likely to lobby for site specific identification of the UK strategic ports thereby recognising the importance of such ports and paving the way for future expansion/provision of improved facilities.

The NPS however only sets out the impact criteria that the decision maker - namely the IPC - will apply in determining future applications for port development. Determining such applications will however continue to be complex given the variety of consent regimes that continue control future port development - ranging from the forthcoming Marine Policy Statements as set out in the Marine and Coastal Access Act of 2009, emerging Development Plan policies, as well as the port's existing permitted development rights. All of these overlapping regimes will need to be taken into account by the IPC.

The guidance also fails to address how port masterplans are to fit in within the new guidance given that the Department of Transport has also issued guidance on the need for major port operators to provide such masterplans so as to help inform development plan policy.

Port operators will also be anxious to ensure that they do not have to foot the bill for the financing of the needed improvements to rail and road infrastructure to improve the access to the existing and expanded ports. The port industry is likely to lobby Government that these necessary improvements to infrastructure should be financed by either Central Government taxation or through the proposed Community Infrastructure Levy and not the port operator.

The guidance can perhaps be best noted as to what it does not say more than what it does - for example, the need to have strategic inland port/rail freight interchanges to help meet the projected growth in demand of port related activities and also how to undertake" alternative site assessments" within the Environmental Assessment. 

For further detailed comment on the Energy NPS please click here or contact Richard Atkinson. For the Ports NPS please contact either Erica Mortimer or Richard Tilley.

Proposed changes to the English Planning System

Communities and Local Government published for consultation in December 2009 until 19 March 2010, proposed changes to the English Planning system aimed to improve in the delivery of sustainable development and help remove further administrative burdens of the planning system on business.

 The proposed changes are given in three consultation papers entitled as follows:

  1. Development Management: Proactive planning from pre application to delivery.
  2. Improving the use and discharge of planning conditions
  3. Improving the engagement by statutory and non statutory consultees

These proposed changes will result in significant changes to planning practice and procedures as to how planning applications are determined and implemented within England.

For a detailed assessment of these proposed changes, the practicalities of their implementation and whether they will actually improve the delivery of sustainable development please click here and see our planning bulletin.

For further information please contact either Erica Mortimer or Mike Straw for further information.

PPS4 "Planning for Sustainable Economic Development"

Communities and Local Government published in late December 2009 the final version of PPS4 "Planning for Sustainable Economic Development." We previously reported on the consultation draft of this PPS in our bulletin in the summer of 2009.

This finalised version of PPS4, (which now supersedes Planning Policy Statement 6 "Planning for Town Centres" of 2005 and Planning Policy Guidance Note 4 of 1992 "Industrial, commercial development and small firms" of 1992), provides guidance and policies in relation to all "economic development", which includes all Class B employment uses (such as industry and warehousing), and public and community uses and "main town centre" uses, which include retail development, leisure and entertainment facilities, offices and arts, culture and tourism development.

The new PPS gives guidance to Regional and Local Planning Authorities as to how to plan in their respective development plan documents for regional and local area "sustainable economic growth" and promotion of their town centres, including site selection and land assembly for main town centre uses. In formulating these polices, the Regional and Local Planning Authorities have to make an assessment of the overall need for land and floorspace for economic development, including main town centre uses, over the plan period. Advice is also given for planning in economic development in rural areas.

The PPS also has "development management policies" in relation to determining applications for economic development and the impact assessments that need to be taken into account by the decision maker. The suite of policies also specify the circumstances when "sequential assessments" are to be undertaken for main town centre uses, including retail uses and how to undertake such assessments. Policy guidance is also given as to what impacts need to be assessed for main town centre uses when such developments are not in a centre, nor in accordance with an up to date development plan.

For further information and a more detailed assessment of the PPS and its implications developers, investors and occupiers please click here or contact either Malcolm Honour or John Stockdale in relation to the consequences of the PPS for retail development or Chris Hicks or Mike Straw in relation to the impact of the PPS for commercial development.

Planning Policy Statement 25: Development and Floodrisk - update of the Practice Guide.

In December 2009, Communities and Local Government published the updated good practice guide in relation to development and floodrisk.

This updated guidance complements PPS25 by offering guidance to decision makers and applicants as to how to implement policies given in PPS25 in practice. This updated guidance replaces the guidance previously given in 2008 and has been produced in light of recommendations from Sir Michael Pitt's report in 2008 of the need to keep PPS25 and its effectiveness under review.

The main changes are identified as:

  • Additional advice on applying the "sequential approach" at the regional level over a longer time frame.
  • New case studies illustrating planning appeals where a sequential approach has not been properly followed.
  • Reference to the Environment Agency mapping of areas susceptible to surface water flooding and advice on the use of this map in spatial planning, particularly in flood risk assessments (paragraphs 3.8 & 3.9 and 3.27).
  • Updated guidance on applying the sequential approach to other sources of flooding, including use of the Environment Agency mapping of areas susceptible to surface water flooding (paragraphs 4.11 to 4.12)
  • Further advice on the application of the sequential Test, including on the availability of alternative sites - paragraph 4.19 and 4.25 and in relation to regeneration areas - paragraph 4.38 and wind farms - paragraph 4.39.
  • Updated advice on sequential testing of site allocation informed by the SFRA, when local development documents are reviewed or being finalised.
  • Further guidance on sustainable drainage systems (SUDS).
  • Provision of a Flood Risk Assessment (FRA) checklist - appendix B of the guidance.

The updated guidance, although not having the status of policy, will nevertheless be taken into account by Local Planning Authorities when deciding planning applications.

The revised guidance demonstrates the increasing importance of flood risk assessment in the determination of planning applications and planning requirement to include under Flood Risk Assessments "sequential and exception test" assessment and hence the need to agree the parameters of such assessments with the Local Planning Authority and the Environment Agency at the pre application stage.

For further information please contact your normal CgMs contact or Mike Straw.

"Garden Grabbing"

On 19 January 2010 Housing and Planning Minister John Healey announced an amendment to Planning Policy Statement 3 - "Housing" and also at the same time, through a letter from the Chief Planning Officer, additional guidance to Local Planning Authorities as how they should consider proposals for the development of gardens in urban areas for housing development.

The Minister's response is partly due to the results of research carried out for CLG to assess whether "garden grabbing" was indeed taking place, requiring a new policy guidance, and also a backbencher B ill (Land use - Gardens Protection Bill) which seeks Parliament to introduce more planning controls of the development of gardens for new houses.

The research concluded that inappropriate building on back gardens is not a widespread, national or growing problem. A minority of authorities consider it to be of importance, mainly focussed in outer London and the South East, whereas the majority across the rest of the country do not.

However, recognising the need for policy clarification the Government's Chief Planning officer advises Local Planning Authorities that if they consider this to be a particular local issue, then the Local Planning Authority should have policies in their development plans that prevent or introduce greater controls on the loss of gardens as well as density and design guidelines.

The main focus of the Government’s position therefore is that local authorities are best placed to develop policies and take decisions on the most suitable locations for housing and they can, if appropriate, resist development on existing gardens.

In relation to changes to PPS3, paragraph 41 of PPS 3, which explains that brownfield land is the priority for development, has been amended to now say that “there is no presumption that previously developed land is necessarily suitable for housing, nor that all of the curtilage should be developed."

Commenting on these changes, John Healey stated that:

"Councils are leaving an open door for inappropriate development if they do not have local plans in place, and the power to stop this lies in their hands. Councils already have the tools they need to deal with this issue and this evidence shows that when they have a local policy in place they can accurately judge the need for new homes on previously developed land, using their own discretion, and protect the essence of a neighbourhood."

For further information please contact your normal CgMs contact or Valerie Scott. 

Flexible Planning Permissions - New Guidance and Fees

As reported in our autumn newsletter and our associated bulletins, on 1 October 2009, the Government introduced new "flexible planning permissions ." These comprise of applications for:

  • Extensions to the time limits for implementing existing planning permissions.
  • Non material amendments to existing planning permissions and
  • Minor material amendments.

In November 2009, CLG published guidance in relation to how these new regimes can be used for and how the new application will be determined, as well as the information required to support such applications.

The guidance provides a summary in Annex A of how these three types of permissions vary in terms of their requirements, when they can be used and supporting information - for example when design and access statements are required.

Although these measures have been welcomed by the property industry, a major obstacle has been to date that the planning application fee for applying for permission to extend the time period would incur a whole new full planning application fee. Clearly this would be a significant cost for major developments that have extant consents but which are not yet implemented and where they are due to lapse.

This unsatisfactory position will be rectified in February 2010 when the Town and County Planning (Fees for Applications and Deemed Applications) receives Parliamentary approval. Once approved the planning fees for are anticipated to be:

Application for extension of time limits
£50 for householder applications and £500 for major development; £170 for other sizes of development.

Application for Non material amendment
£25 for householder applications and £170 for other applications.

Application for Minor material amendment

For further information please contact your normal CgMs contact or Mike Straw 

Crossrail - Levy Update

In light of the Crossrail Act of July 2008 and the final funding agreement which committed full finance for the project signed in late 2008, Crossrail commenced construction in May 2009. A full operational services is expected to be running through Central London linking Canary Wharf and the City to London's West End, Paddington and Heathrow by 2017. It is anticipated that over 200 million passengers will use Crossrail in the first year of operation.

The funding agreement which set out how the £16 billion cost of Crossrail will be funded, signed by the former Mayor and the Government, requires £300 million to be raised in contributions from office development (and an additional related £300m is to also come via the Community Infrastructure Levy when this is in place, currently expected by April 2010).

The Mayor first published proposed draft alterations to the London Plan and supporting guidance in May 2009. This proposed new policies to use planning obligations (Section 106 agreements) to secure financial contributions to help finance Crossrail from office developments over 500 sq m in central London, the north of the Isle of Dogs and areas near new Crossrail stations outside central London.

The Mayor subsequently published amended draft planning guidance on Crossrail in October 2009, which sought to encourage new office development in Central London by offering a 20 per cent discount on the Crossrail levy for those office developments that are granted planning permission and start work during the three-year period after the new policy is formally published in Summer 2010.

The levy was debated at the 'Examination in Public' of the London Plan Crossrail Alterations held between 14th to 18th December 2009 as part of the new plan for London.

At the EIP Boris stated that:

" Crossrail is vital if London is to remain on course for prosperity throughout this century and beyond. The benefits of the improved links across the capital include the easing of congestion on the existing transport network and the creation of many thousands of jobs. While Crossrail will make a substantial contribution to the whole UK economy, London will benefit most and therefore it is right that we pay our fair share of the costs. In particular, it is fair that developers whose buildings will add to congestion should contribute towards this project, which will make the largest dent on the problem".

The development industry has voiced concerns about the levy - which could be around £213 per sq m of office space - and how this will affect the viability of major developments during the economic downturn. In response the proposed Crossrail levy policy includes viability as a planning policy test for the purpose of negotiating financial contributions.

The regeneration of Nine Elms, including Battersea Power station, is also to be exempt from the Crossrail levy - although these developments are now to help fund the proposed northern line extension.

It is widely expected that the Crossrail levy will become policy in the new London Plan, which is likely to be approved in the summer of 2010.

For further information please contact your normal CgMs contact or Mike Straw.

If you require further information on this Newsletter please contact:

Mike Straw, BA, BTp, MRTPI
Director, Planning
Tel:020 7832 0252   Email:

Erica Mortimer, BA (Hons) FRTPI FRSA
Managing Director, Planning
Tel:020 7832 1465   Email: 

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