PPS4: A hurdle to growth?

The most significant national planning policy statement since the start of the recession was recently issued by the Department of Communities and Local Government. The fusing together of policies, concerning economic and town centre development into a single policy document, provided the Government with an opportunity to send a clear and positive message that jobs and regeneration would be brought to the heart of Town Centre Policy, providing much needed encouragement and impetus to a beleaguered construction sector.

The presumption in favour of sustainable economic development, as the cornerstone of the policy, is a positive step forward. However, the degree of prescription imposed on all main town centre uses (which now embrace offices, arts and cultural developments alongside retail, leisure, sports and recreation uses) will make life more challenging for those local authorities who seek to capture regeneration opportunities which may not have been contemplated when the development plan was formulated and that are, as such, not allocated.

The origin of the prescriptive approach comes from the Government’s stated desire to remove the needs test from development control decisions. This in turn was driven by the desire to promote competition amongst retailers and to provide choice to consumers. Whilst this is a laudable aim, it has resulted in the contortions in the formulation of the policy that prevent a free for all in the planning process.

For example, where a site has not been allocated in an up-to-date development plan, the sequential approach will be the gatekeeper policy. This process favours certain use of land-types over others, such as brownfield development over greenfield, and is in essence a common sense policy rather than particular to the development. The sequential approach is a gatekeeper in the sense that if it is not satisfied, the local planning authority is “directed” as a matter of national policy to refuse planning permission. Moreover, even if the sequential test is satisfied, the planning application must satisfy 11 impact considerations before planning permission can be granted.

“Satisfy” is meant in the sense that the impact of the proposal is not “significant adverse” taking into account the likely cumulative effects of recent permissions and other developments. Should just one of the 11 impacts be adjudged to be significant adverse, policy directs local authorities to refuse planning permission, even if there are major and significant regeneration benefits to be enjoyed. Only where there are no significant adverse impacts, can the decision-maker take account of positive impacts of the proposal and any other material considerations in the balance of their decision.

Whilst it is accepted that policy must endure for a reasonable period of time, it is odd that such a prescriptive approach should be advocated at such a challenging time economically, particularly given the stated intent to promote competition and choice. Such a direction is also at odds with the legal duty on all decision makers to have regard to all material considerations in reaching a balanced planning judgement. Read at face value, some local authorities might refuse planning applications based on the policy without regard to this overriding legal duty, leading to more appeals and legal challenges for those with both the stomach and necessary deep pockets to take such action.

It should also be borne in mind that the policy and 10 of the 11 impacts (only the impact on in centre trade/turnover applies to retail and leisure exclusively) must be applied to all main town centre uses. It begs the question, why, for example, should a developer promote an office development in a town centre when an easier ride is likely on an out of centre business park? In this case, only five impacts will be considered.

It is also alarming that the latitude available to local authorities to interpret and apply national policy in formulating development plan policies, albeit within reasonable parameters, has receded. The PPS4, formulated so that it resembles a development plan document, not only lends itself to adoption into emerging development plans but also states that “It is only necessary for the development plan to reformulate development management policies in this PPS if there are specific factors justifying variations of these policies”.

So what are the implications? Proposals which come forward outside of the development plan process will face much higher hurdles than previously, to the possible detriment of job creation. Whilst the primacy of the development plan is accepted, the complexity of the process and time scales associated with plan production militate against regeneration initiatives in increasingly changing times. Against this background, seeking to reduce the flexibility available to local authorities to take informed and responsible decisions in the public interest is a retrograde step, particularly where call-in powers are available to examine possible aberrant decisions.

Increasing numbers of local and regional authorities are choosing to begin regeneration works now to take advantage of the high rate of competition between developers as well as to stimulate their particular economies. To increase the obstacles towards successful development in the manner that PPS4 does thus seems ultimately obtuse. With an upcoming general election, the impact of this consolidation of policy may well prove negligible. Regardless to say, in the current environment regeneration plans should not be exposed to any extra bureaucratic red tape, regardless of how well intentioned.

Tim Hellier is joint head of Planning and Environment at Berwin Leighton Paisner. He is a leading practitioner in all aspects of planning, compulsory purchase and environmental law. Contact: Tim.Hellier@blplaw.com