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08/11/2016

Interventionism vs devolution: the new frontier?

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Bradford City Centre

Ministerial holding directions in respect of local plans create uncertainty for developers and local authorities, says Tom Edwards of Pinsent Masons

Planning minister Gavin Barwell’s recent decision to issue a holding direction preventing Bradford Metropolitan District Council from adopting its development plan follows a similar decision earlier this year in respect of the Birmingham Local Plan. 

These two interventions show a tension between the government’s drive to ensure that planning policy and decision-making is devolved to the local level, and increased intervention by ministers.

The direction in this case requires Bradford Metropolitan District Council “not to take any step in connection with the adoption of the plan” pending further investigation of issues raised by Philip Davies, the Conservative MP for Shipley. It is a new power inserted into the Planning and Compulsory Purchase Act 2004 by the Housing and Planning Act 2016.

Davies’ concerns include “the proposed release of green belt, particularly in Wharfedale, development of green belt before brownfield land is exhausted, the efforts made under the duty to cooperate to meet Bradford’s housing need and the appropriate location for development to alleviate housing need and contribute to the regeneration of Bradford city centre”, according to the letter from the minister.

The primacy of the green belt has been a central policy objective since the advent of the modern planning system. The National Planning Policy Framework (NPPF) retains this general policy thrust and prevents local planning authorities from “inappropriate development” on the green belt, while restricting amendments to green belt unless in exceptional circumstances.

The inspector who examined Bradford’s core strategy studied the approach taken by Bradford and its compliance with national policy, and in August backed Bradford’s proposals to release sufficient green belt land for 11,000 homes. He did so on the grounds that “insufficient land” could be identified “outside of the green belt to fully meet identified housing needs”.

But on his website Davies said these conclusions were “fundamentally flawed”, arguing that “the building of so many houses on green belt land in a village should need particularly exceptional circumstances, which I do not believe have been met”.

The holding decision will give Barwell time to decide whether to formally intervene in the case, under section 21 of the 2004 Planning and Compulsory Purchase Act.

This decision resembles that of Barwell’s predecessor Brandon Lewis to prevent the adoption of Birmingham City Council’s development plan earlier this year. 

Like the Birmingham case, Bradford had recently taken its core strategy through examination by an independent inspector, with the council then planning to decide whether to adopt the core strategy in accordance with the inspector’s recommendations.

“A lacuna in the development plan-making process is created and planning decisions are affected as there is a lack of an up-to-date development plan”

There may well turn out to be a fundamental flaw in the approach taken by Bradford Metropolitan District Council not revealed during examination. But these decisions will be a concern to developers as well as local planning authorities. They show that the government is willing to exercise its powers to intervene in the adoption of development plans even following extensive public consultation and independent examination.

In doing so, a lacuna in the development plan-making process is created and, consequently, planning decisions are affected as there is a lack of an up-to-date development plan against which planning decisions should be made.

These outcomes surely should be avoided wherever possible and minister’s intervention reserved only for circumstances where there is a clear error in the development plan in the interpretation of national planning policy.

The Birmingham direction remains in place some five months later and it shows that the government is not resolving the issues speedily. Indeed, given the late stage in the local plan cycle, one might say there is little the secretary of state can do save require withdrawal of the local plan – which flies in the face of the government’s stated aim to support authorities to get local plans in place by 2017.

One is left with the conclusion that if intervention is justified from the minister, then this should happen during the examination process. Then the issue can be resolved through that process, rather than derailing the adoption of a development plan document. 

Tom Edwards is a senior associate at Pinsent Masons

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