Although not something necessarily at the forefront of people’s minds as we consider how we can best stimulate our economic recovery, the forthcoming review of the implementation of the 2011 Planning Act in Northern Ireland will be of significant importance.
Passed into law some nine years ago – with the bulk of its effect coming into force with the transfer of the majority of planning powers to local councils in 2015 – there has been a significant period in which we have judged its effectiveness and that of its associated development management regulations and practice notes in delivering a responsive and effective planning service.
It is therefore welcome that Infrastructure Minister Nichola Mallon MLA has confirmed that a review is to be taken forward before the end of 2020 – but what are the areas this review should consider and what reforms could be taken forward to enable development?
TIMESCALES AND ROLE OF STATUTORY CONSULTEES
When we look at the statistics that underpin our two-tier planning system – chiefly the processing times for regionally significant, major and local planning applications – the five-year period that has passed has resulted in little tangible, positive change in processing and approval timescales. At the outset, this was put down by many to planning applications inherited from the then DoE, lack of resources, the Voluntary Exit Scheme and challenges within councils regarding quickly adapting to their new powers.
Looking at this five years’ later, it is abundantly clear that resource challenges remain. While this can be seen within the respective council planning offices, it’s arguably more noticeable in the time taken by statutory consultees to provide substantive responses to applications.
A key focus of the forthcoming review should be on delays in responses and how they can be speeded up yet also be substantive. The review should also consider whether councils should have the power to award a planning permission where statutory consultees have been given ample time to respond but have failed to do so.
Linked to this, it may be worth reassessing the Virtual Delivery Unit proposal that was contained within the Housing Supply Forum’s report of January 2016, giving individual planning authorities greater control over requiring responses from statutory consultees within an enforced timeline that related directly to the nature and complexity of each application.
EFFECTIVENESS OF STATUTORY PACC AND PAD
The statutory requirement for pre application community consultation on many projects has been a welcome introduction. Indeed, the changes announced this May (given the ongoing pandemic), to enable statutory consultation to be conducted by online and remote means have been welcomed by both developers and local communities.
Looking beyond this period, it is important the review considers in detail how all forms of statutory consultation – including the earlier stage pre-applications discussions which have arguably bedded in less well – have worked to date, as well as whether those developers that go ‘above and beyond’ at these stages of the planning process should receive accelerated consideration of their proposals.
REVIEWING IMPLEMENTATION OF PLANNING CONDITIONS
One of the hallmarks of the last five years has been the significant growth in planning conditions that come with the awarding of planning approval. Many of these conditions, unnecessarily, halt the commencement of development and should de delivered in tandem with projects being delivered.
CLARITY REGARDING DEVELOPER CONTRIBUTIONS
With regard to the relevant content of the 2011 Act, the industry is not opposed to Developer Contributions in principle. Indeed, when the Department for Infrastructure conducted a consultation exercise on its proposed Development Management Practice Note 21: Section 76 Planning Agreements in late 2016, the industry played an active role in ensuring that developers had an opportunity to positively comment on the proposals and that the Department would, ultimately, publish a Development Management Practice Note which had, as far as practicable, the buy-in of industry.
However, reflecting on the publication of Belfast City Council’s draft Developer Contributions Framework in the autumn of 2018, many of the key challenges remain: approach to viability, acceptable developer profit, land valuation, policy context, sums in agreements, status of contributions and request of contributions for projects not within an individual Council’s gift.
The review needs to give this matter full consideration and seek to bring in a much clearer, upfront and transparent approach as well as how the approach links in with that being developed by many councils – with respect to affordable housing policies – as elements of their Local Development Plans.
PRIORITISING PROJECTS OF ECONOMIC SIGNIFICANCE
Given current economic conditions, there is a strong argument for advancing key projects at the planning application stage, by giving them additional ‘weight’, which can unlock immediate economic benefits. These could range from important investments in decarbonising our electricity and energy infrastructure through to substantial housing schemes.
ASSESSING ‘LOW BAR’ FOR LEGAL CHALLENGE
While any reform must not be about eliminating the opportunity for legal challenge there is a clear need to assess the relative ease at which a challenge can be lodged. Additionally, a number of significant planning applications have been caught in seemingly never-ending legal proceedings – some for a decade if not more. While their various merits can be debated, is it in anyone’s interests for such applications to be dragged out for so long?
DEALING WITH POOR QUALITY APPLICATIONS
The industry has always been quite clear that if applications are not up to required standards for instance through the upfront publication of required checklists that an applicant must meet – then councils must act to ensure that all developers are being held against the same standards. In our view, required checklists must become the norm.
The forthcoming review will therefore be a crucial opportunity to take stock of the experience and outcomes of the two-tier system to date, but also a point at which major reforms will need to be considered so to make it a planning system that is fit for the economic need that faces us.
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