I have understood that it is a long held principle the planning system should not be used to enforce controls covered by other regulatory and legislative regimes. The NPPF states this explicitly in relation to pollution control:
“The focus of planning policies and decisions should be on whether proposed development is an acceptable use of land, rather than the control of processes or emissions (where these are subject to separate pollution control regimes). Planning decisions should assume that these regimes will operate effectively.” (NPPF, para. 194)
The first sentence of paragraph 194 is clear enough. The planning process has a key role to play in identifying contamination at an early stage, so that appropriate remediation can be put in place, to enable a proposed land use to go ahead. Once identified, the processes put in place to ameliorate the impacts of a known pollutant, are covered by other regulations. The Control of Asbestos Regulations 2012 is a good example, existing as it does to protect construction workers once asbestos has been found.
The second sentence of paragraph 194, although written in regard to pollution control, points to a standard that could, and should, be applied to other aspects of development management. In my experience this is not always the case.
For buildings that have a reasonable likelihood of housing bats and their roosts, applicants are required to carry out a Preliminary Bat Roost Assessment (PBRA). All well and good, and as with contamination, this identifies a potential issue at an early stage. However, if the PBRA indicates potential as a bat roost, two to three dawn and dusk emergence surveys have to be carried out prior to the application being determined. The seasonal window for surveys can mean significant delays for the determination of applications, but so far I have not seen a convincing argument as to why emergence surveys have to be completed prior to planning permission being issued.
I have seen it argued that a bat survey condition would not give the developer sufficient certainty that the permission can be implemented, but there are many issues with a level of uncertainty that are dealt with at conditions discharge stage. Those in the South East will be aware of water neutrality requirements under Regulation 77 of the Conservation of Habitats and Species Regulations, (left to conditions stage) but that’s a whole other blog post.
No such requirement for a PBRA and survey work is written into Part 11, Class B, ‘Demolition of Buildings’, presumably because in Britain all bat species and their roosts are legally protected under the Wildlife and Countryside Act 1981. An LPA could of course refuse prior approval on the basis that protected species surveys have not been carried out, but it seems odd that ecology is not specifically mentioned in Part 11, Class B as one of the issues to be addressed. Is it because the authors were relying on the Wildlife and Countryside Act to ensure an act of demolition will not kill or injure a bat, or damage or destroy a bat roost?
For the record, before you get Chris Packham on my case, I am not ‘anti-bat’. I went into town planning back in the early 90s because of the extent of habitat destruction I saw around me. But as consultants have also have a duty to our clients, and more and more we are witnessing delays to the planning process that could perhaps be avoided.
Here’s another example… drainage.
I was recently asked to provide a level of detail on drainage design to discharge a pre-commencement condition for a small housing site on greenfield land that surpasses anything I have previously encountered. Having approved my client’s surface water drainage strategy prior to the grant of permission, a condition was imposed requiring full details of the drainage scheme, which would be expected. However, it was the subsequent level of detail demanded by the Council’s Drainage Engineer in order to discharge the condition that in my view went well beyond what can be insisted upon through town planning legislation.
This included the size and design of soakaways, based on calculations from three months’ winter groundwater monitoring and infiltration testing; the depths of underground pipes and the materials to be used around them, materials and depths for hard surfaces, full specifications for catch-pits, invert levels… I could go on. And we were required – pre-commencement – to prepare a maintenance manual for the drainage system, with details of who would be responsible for putting it into effect once the houses were occupied. This is a big ask before the houses have been built, let alone occupied.
I’m not suggesting adequate drainage is not essential, but surely this is the remit of building regulations, not planning? Part H of the Building Regulations includes the information I was being asked to provide to discharge a planning condition. Insisting on a level of detail that should only be required at building regulations stage adds significant costs and delays for applicants, all the more frustrating in cases where the applicant is not the developer but will be selling the site on, with pre-commencement conditions discharged.
Planning Officers’ colleagues in ecology, drainage, or whichever section, are advisors to the planning process. It is the responsibility of Planning Officers to adjudicate on whether the demands put forward by other departments are relevant to planning. I appreciate the difficulty of ignoring the advice of the expert in a particular field, but just as conditions must not put unjustifiable and disproportionate financial burdens on an applicant, then surely that principle should also apply to requests pre-determination?
