UK: Regional And Local Development Planning: The Planning And Compulsory Purchase Act 2004 (Commencement No. 2) Transitional Provisions Savings Order 2004

Parts of the PCPA 2004 came into effect on 28 September 2004 and will change the way that development plans will be prepared in the future. The thrust is now in the direction of regional strategy which will be devised by Regional planning boards. In the absence of elected regional assemblies, these will be boards of which at least 60% will be elected councillors from county councils and local planning authorities.

Except during the transitional period of approximately three years, county structure plans will disappear. They will gradually be phased out by the documents which go to make up the local development scheme. No longer will planning policy appear in the format of one document, being a local plan or unitary development plan, but will be contained in a number of different documents, some of which will have statutory development plan status and others not, thus making up a "portfolio" of planning policy. This will provide greater fl exibility in the use of local authority resources in drawing up the plans and will presumably be able to give local authorities greater control to prioritise.

Community involvement is now specifically built into the process from the outset. Developers should seize the opportunity to infl uence and shape planning policy through the consultation process.

Throughout, the emphasis is on spatial planning rather than land use planning so that all strategies or policies which have an effect on an area are to be taken into account and every strategy should take on board all other relevant strategies. So the whole process, of which planning aspects are just one part, may be seen as circular but with sustainability at its heart.

The ODPM has recently published guidance on best practice in making planning information freely accessible and making any charges for documents reasonable.

The Planning and Compulsory Purchase Act, which was passed in May of this year, is being brought into force piecemeal on various dates to be set by the Secretary of State.

A Commencement Order has come into force bringing a number of provisions of the Act into force on 28 September 2004.

These in the main relate to Part 1, which relates to regional functions, that is to say, regional spatial strategies, and regional planning bodies (RPB); Part 2, local development, relating to the preparation of local development schemes and local development documents; Part 3, development plans.

Regional Functions Regional Spatial Strategy ("RSS"). Each region is to have its own regional spatial strategy. Regions for this purpose are those specifi ed in Schedule 1 to the Regional Development Agencies Act 1998. The RSS must set out the Secretary of State’s policies in relation to the development and use of the land in the regions. The RSSs will be the broad development strategy for the Region for up to 20 years in advance.

Like Structure Plans, RSSs will not be site specifi c and will deal with matters such as the scale and distribution of the provision for new housing, priorities for the environment, transport infrastructure, economic development, waste treatment and disposal.

With effect from 28th September 2004 the RSS for a region is the existing regional planning guidance (formerly RPGs) relating to the region.

Regional Planning Body ("RPB"). The Secretary of State is to give directions specifying which bodies are to be the regional planning body for each region. At least 60% of the membership of each RBP must be either elected councillors from County Councils or local planning authorities.

The RPB must keep under review the RSS and any matters which may be expected to affect development in its region. A duty is also imposed upon the RPB to monitor the implementation of the RSS throughout the region and consider whether the implementation is achieving the purposes of the RSS.

Annual Report. The RPB must prepare an annual report on the implementation of the RSS in its region. The RPB can require local authorities within its region (county councils, metropolitan district councils, district councils for an area for which there is no county council and National Park authorities) to assist it in the discharge of its functions.

Revision of RSS. The RPB must prepare a draft revision of the RSS when it appears to be necessary or expedient to do so, at such time as is prescribed in the future by the Secretary of State or if it is directed to do so by the Secretary of State. In preparing the draft revision, the RPB must have regard to the following matters:

• national policies and advice containing guidance issued by the Secretary of State

• the RSS for each adjoining region

• the spatial development strategy for Greater London if any part of its region adjoins Greater London

• the Wales Spatial Plan if any part of its region adjoins Wales

• the resources likely to be available for implementation of the RSS

• such other matters as are prescribed by the Secretary of State.

In preparing the draft revision, the RPB must also carry out an appraisal of the sustainability of the proposals. The RPB may decide to make different provisions for different areas within the region and, unless there is agreement otherwise, the County Council or the various other authorities listed above must fi rst put forward the detailed proposals for such areas.

The RPB must publish a strategy of its policies as to the involvement of people who appear to them to have an interest in the preparation of the RSS, and involve them as set out in that strategy.

When the Secretary of States receives a draft revised RSS it is open to anyone to make representations in relation to it. In deciding whether to arrange an examination in public of that draft, the Secretary of State should take into account the extent of the revisions, the extent of public consultation and the level of interest shown in the draft and such other relevant matters as he considers appropriate.

Examination in Public. An examination in public would be held by an inspector appointed by the Secretary of State. Nobody has the right to be heard at the EIP. If no EIP is held the Secretary of State must consider any representations which have been made to the draft provisions and, if an EIP is held the Secretary of State must consider the inspector’s report and any other representations which have not been considered by the inspector. The Secretary of State may propose changes which he must publish with his reasons for making them. Again representations can be made. The Secretary of State must then fi nally publish the revisions.

The Secretary of State will have powers to make regulations in relation to the exercise by the RPBs of their function and powers of direction and revocation.

Surveys. Local planning authorities ("LPA") are at duty to keep under review the matters which may be expected to affect the development of their area or the planning of its development. The matters to which an LPA must have regard include:

• the principal physical, economic, social and environmental characteristics of the area

• the principal purposes for which the land is used in the area

• the size, composition and distribution of the population of the area

• communications, transport systems and traffi c of the area

• any other considerations which may be expected to affect those matters.

The LPA must also have regard to any changes which it thinks may occur and the effect such changes are likely to have on the development of the authority’s area or on the planning of such development. County councils are under a similar duty to conduct an ongoing survey in respect of "county matters" (as defi ned in the TCPA 1990) in respect of their areas.

Local Development Scheme. LPAs must prepare and maintain a scheme to be known as their "local development scheme" ("LDS") which must specify (amongst other things):

• the documents which are to be "local development documents" ("LDD"). These are defi ned as documents (taken as a whole) which set out the LPA’s policies (however expressed) relating to the development and use of land in its area and also include the statement of community involvement.

• the subject matter and geographical area to which each document is to relate.

• which documents are to be development plan documents.

• the timetable for the preparation and revision of the documents.

Statement of Community Involvement. In preparing the LDS, the LPA must also prepare "a statement of community involvement" being a statement of the LPA’s policy relating to the involvement and consultation of people who appear to the authority to have an interest in matters relating to development in their area in the preparation of LDDs. In preparing its LDDs, the LPA must have regard to:

• national policies and advice containing guidance issued by the Secretary of State

• the RSS for the region (or the spatial development strategy if the LPA is a London Borough or if any part of the LPA’s area adjoins Greater London)

• the RSS for any region which adjoins the area of the LPA

• the resources likely to be available for implementing the proposals in the document

• any other local development document which has already been adopted by the authority.

The LPA is also under a duty to carry out an appraisal of the sustainability of the proposals in each LDD and must prepare a report of the fi ndings of such an appraisal.

Every development plan document within the LDDs must be submitted to the Secretary of State for independent examination. The purpose of this examination is to determine whether the document satisfi es the requirements of any regulations made under the bill relating to the preparation of development plan documents and "whether it is sound". (See PPS12 for meaning).

Any person who makes representations seeking to change a development plan document must (if he so requests) be given the opportunity to appear before and be heard by the inspector.

The LDDs must be in general conformity with the RSS or Spatial Development Strategy (if the LPA is a London Borough). The LPA must therefore request the opinion in writing of the RPB as to the general conformity of its development plan document with the RSS (or, if the LPA is a London Borough, request the opinion in writing of the Mayor of London as to the general conformity of a development plan document with the spatial development strategy). The RPB (or the Mayor of London) must send its opinion to the Secretary of State and the LPA within a prescribed time period.

County councils are under a duty to prepare and maintain a scheme to be known as their "minerals and waste development scheme", which follows broadly the same pattern.

Advice on RSSs and Local Development Frameworks is now contained in the recently published PPS 11 and 12 on the subject.

The above changes have necessitated an amendment to what now constitutes the structure plan, both in London and elsewhere. For London this will be the London plan and those LDDs which are identifi ed as the development plan documents and for areas outside London will be the RSS plus the development plan documents.

The transitional arrangements also came into force on 28 September 2004. This means that adopted structure and local plans, and unitary development plans will retain development plan status and will automatically become "saved" policies for a period of three years from that date. For plans in preparation this three year period will commence from the adoption or approval of the draft plan. During the three year period LPAs shall bring forward local LDDs to replace saved policies.

Where on commencement the preparation, alteration or replacement of a structure plan, local plan or unitary development plan has not reached fi rst deposit stage, the preparation of those proposals cease, to be taken over by preparation of RSSs and LDDs. Where LPAs have published the statutory notice of deposit for any of such plans, then the position will either be:-

• if the LPA is in the middle of an EIA or inquiry or an inspector has been appointed, or the proposals will continue under the same procedures; or

• where an inspector has not been appointed the draft plan will continue under the transitional procedures which are an adaptation of the existing procedures. There will, for example, be no modifi cation stage.

As revisions to RSSs are published, they will gradually replace structural plan policies and at any time the RPB should identify which RSS policies are replacements and save structure plans. PPS12 sets out the situation in detail.

Similarly, local plans and UDPs will be saved for a period of three years and a similar transitional process takes place, again spelled out in much more detail in PPS12.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.