The government’s presumption in favour of development could be a boon for developers. But which schemes could benefit?

Last week, the government published its long-awaited consultation on the presumption in favour of sustainable development. Designed to overhaul the planning system, the policy will be the first real step in the coalition’s plan to reduce the length and complexity of the existing process.

Developers have declared themselves shocked and delighted at the brevity and simplicity of the two-page statement. Succinct it may be, but those 528 words could be absolutely vital to a development industry reeling from the abolition of regional planning policies - a move that has seen councils scrap plans for more than 200,000 homes since it was announced a year ago.

In effect, the words mean that in any situation where a local plan is out of date or unclear on a particular issue, an application should be treated on its merits, with the assumption that it should be approved unless there is a good reason not to.

Communities minister Greg Clark, the man driving the policy through, told the 2011 Royal Town Planning Institute planning convention last week that councils should start to apply it now, because the intention to introduce it was clear and not reliant on parliamentary approval. Either way, it is expected to come into force by the end of the year.

Predictably, conservation groups are in uproar, with the Campaign to Protect Rural England saying the presumption would “open the floodgates to environmentally damaging development”. Meanwhile, for planners hoping that localism will allow them to turn down unpopular applications, the policy demands a swift change of mindset.

Peter Studdert, director of Peter Studdert Planning, says: “Essentially this seems to be saying that the objectively assessed needs of an area should be planned for - which was the point of the old system. This is like Eric Pickles turning into John Prescott.”

What the policy says

The presumption should apply if:

  • An application accords with local plans
  • The council’s development plan is absent, out-of-date, silent or indeterminate
  • The application does not compromise sustainable development principles in national policy, defined with reference to producing a sustainable economy; protecting the physical environment; and producing enough homes and social facilities for people.

This does not, however, mean the policy is without problems. First, the presumption in favour of development will only apply in certain circumstances. The most obvious of these is if a council’s development plan is out of date. Given that only 30% of councils have so far ratified strategies under Prescott’s planning system devised in 2004, this may be a big opportunity for developers - and an incentive for councils to pull their fingers out and get their plans up to date.

To confuse matters, there is no definition of what “out-of-date” actually means, leaving it open for lawyers to debate. Robin Tetlow, managing director of Tetlow King Planning, says: “You only need one major thing to change and that can make quite a recent plan out of date - there’s no agreed definition.”
A second problem is that the definition of sustainable development in the publication is very brief and seems to rely on the forthcoming National Planning Policy Framework for interpretation, leaving another area for the courts to decide on.

“The definition doesn’t get you very far,” says Roger Hepher, head of planning at Savills. “It’s motherhood and apple pie, but not a practical definition for people to work around. We could be heading for a busy and rather unsettling period of appeals and legal challenges while the courts define the real rules of engagement.”

Nevertheless, one planning consultant said the policy is already being used in planning inquiries to fight opposition to construction, meaning developers are already seeing it as a weapon in their armoury, following a long period of stasis in planning.

So, where might the presumption in favour take effect?

West Stevenage

What : 9,600 home expansion of Stevenage into the neighbouring North Hertfordshire district
Promoters/developers: West Stevenage Consortium
Status: This is a scheme that has gone round and round the legal system so many times already that it must be getting dizzy.

In the most recent decision this week, the application for 3,600 homes in west Stevenage was turned down by the Court of Appeal on the grounds that there was not enough infrastructure to support it.

A wider question surrounds the plan - in the face of opposition - to build 9,600 homes in the area around Stevenage. The reason it has been such a wrangle is that, while Stevenage council has promoted the development as a natural extension to the town, the land actually falls under the jurisdiction of the neighbouring authority, which strongly opposes the scheme. Stevenage’s core strategy was recently declared unsound because of its reliance on homes being provided outside of the borough. Furthermore, it was supported by the Regional Spatial Strategy, which is now set to be abolished.

However, the presumption in favour could change this. North Hertfordshire council’s local plan dates from 1996, so the lawyers acting for the developers, which include the Homes and Communities Agency, should have little trouble in arguing it is out of date.

This means the council will have to find good reasons to turn down any new applications in the expansion area.

Crooked Oak Nursery

What: 700m2 leisure development in a rural location near Bideford, Devon
Promoters/developers: Slim Gyms
Status: This case, albeit small, is an interesting study of what might happen more often in places that have out-of-date plans. The proposal for a 25m swimming pool and associated facilities for school children in the area had been subject to a vigorous campaign of opposition, because of its location in the woodlands outside existing towns.

Despite the developer’s argument that it had no alternative locations for the site, planning officials at Torridge council recommended that it be turned down because of its location.

However, the planning committee at the council went against its officials and voted the development through at the start of this month, at least in part on the basis that the town’s 2004 plan was out of date, so the development should be subject to the presumption in favour.

This fits with MP Greg Clark’s statement at last week’s planning convention that councils should already consider the presumption in favour to be in force, even though the wording is not finalised, because it does not require primary legislation to be enacted.

The development will go before the planning committee again to confirm approval, with the council’s officials recommending again that it be turned down because of a fear of the precedent it could set.

Robin Hogg, chairman of the Campaign to Protect Rural England in Devon, says: “Such a development in the open countryside sets a worrying precedent for building in unsustainable, inappropriate, rural locations.”

Harlow North

What: 10,000 home expansion north of Harlow, Essex, into greenfield land, including some green belt
Promoters/developers: Land Securities and Places for People
Status: The scheme has effectively been on hold since the coalition announced the abolition of the Regional Spatial Strategies last summer. It had been approved as part of the East of England Plan during Ruth Kelly’s tenure as communities secretary, despite not being recommended for inclusion by the planning inspector because of the strength of local opposition.

Like the West Stevenage scheme, this development is also the victim of local authority boundaries. Harlow council says it is essential to manage the town’s growth, while East Hertfordshire council - under which the scheme would fall - opposes it.

East Hertfordshire revised its plan in 2007, but planning consultants say the development could still fall under the presumption in favour policy, because the 2007 strategy was not in the updated format prescribed by the 2004 Planning Act. It could, therefore, be out of date, even though it is only four years old.

Nigel Clark, secretary of the Stop Harlow North campaign group, says: “The developers know the local population would be livid if it tried to use the planning system changes to the advantage of its unsustainable scheme.”