Planning application – necessary material & determination

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  • Parameter plans: good examples & implementation
    Posted by Rob Smith - 20 Sep 07 16:18
    I'm interested in people's experiences of parameter plans, whether people have specific examples of good ones in terms of levels of detail, scope and the range of development parameters they actually do or should cover It'd also be interesting to hear about any issues related to their usefulness to control detailed/reserved matters applications post the outline stage

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    • Re: Parameter plans: good examples & implementation
      Name withheld - 06 Jun 08 13:15
      A minimum suite needs to accord with what has been assessed through the EIA process.

      Flexibility is often an issue with a complaint that 'outline' has now become too specific. 2 approaches seem to stand out to me that can help to retain some flexibility - either to just set parameter plans that include all potential extents such as a built development plan that sets out all land where buildings could potentially be located (but not defining exactly) , or alternatively set a line and indicate tollerances to it either on the plan or in accompanying material (ie include a building line but say it could actually be within +/- a set number of metres from it).

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  • Validation of large apps - local plans
    Posted by Fergus Bootman - 29 May 08 14:51
    I am interested to know if there is any provision for submitting larger scale Location Plans within the new validation requirements.

    The 'Validation of Planning Applications - Guidance for Local Authorities' states that only location plans at a scale of 1:1250 or 1:2500 are permissible.

    Is anyone aware of any allowance for large scale developments to submit a larger scale location plan? From the reading of the guidance it doesn't appear so!

    Any responses appreciated.

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    • Re: Validation of large apps - local plans
      Posted by Kelvin Hinton - 18 Jun 08 14:16
      Fergus - I am not aware of this specific issue being raised before or addressed in the latest Guidance. At face value it would appear that a Authority could build this into their requirements for large scale applications as part of local validation scheme.

      It is to be hoped that a proactive pre-application discussion would include agreement as to the necessary plans and other documents to be submitted as part of formal planning application. So long as the Authority could demonstrate the need and value of the required plans then I would expect / hope that the applicant would agree to provide these.Hope this helps.

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  • S106 Agreements & EU procurement rules
    Posted by Rob Smith - 08 Aug 08 14:50
    We have been approached by an Authority with a question regarding planning obligations agreed between a developer and LPA to secure certain pieces of infrastructure through a traditional S106 agreement.

    They have obtained legal opinion to the effect that if these works are higher than EU threshold costs then the use of a S106 to secure a developer to provide them would be in conflict with EU procurement law. For large scale growth application it will be reasonably common for certain works to be higher than the EU thresholds, such as for the provision of certain large community facilities, transport improvements, etc.

    The issue is more pertinent following the outcome of an ECJ decision in relation to a case in France in Jan 2007 (Jean Auroux and others v Commune de Roanne). The ECJ appears to have reinforced the fundamental principles of the public procurement rules, namely the opening up of public contracts to genuine competition.

    We would be interested to hear if any LPA's have come across this issue and how they may be structuring legal agreements to avoid potential conflict. Or alternatively, if people are not aware of the issue at all, or do not feel it relevant.

    Any views welcome.

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    • Re: S106 Agreements & EU procurement rules
      Name withheld - 08 Aug 08 15:56
      Rob,
      i recently tried to enter into a strategic partnering arrangement with a major RSl on a bunch of s106 sites I controlled. My proposal was we would negotiate the deals rather than tender them, but the two legal opinions i got both said that because the value was above 3mE, then the RSL would have to tender them!!! Wot, on my land??
      i can understand the logic (just) but there is an even larger problem.
      If you, me, we, attempt to find some way around this EU requirement, then we will be in breach of the requirement: it is what it is.
      Never come across this problem on s106 infrastructure before, but in theory it must also impact upon the procurement of affordable, and as such councils' demands that we use a particualr RSl or 'partner' RSLs must also be in breach of this regulation.
      Might be worth taking up with the Housing Corporation 'toot-sweet' lest we all find we are in breach.
      If you want to know the two legal opinions contact me

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    • Re: Re: S106 Agreements & EU procurement rules
      Posted by Shaun Jamieson - 08 Aug 08 16:29
      Rob

      As the previous writer has confirmed there is a requirement to follow procurement rules wherever there is a requirment for works which will fulfill an econominc or technical function. Strictly this has always been the case but has been more honoured in its breach. The best example is probably section 278 works where the Authority is by the section authorised to carry out works but invariably in practice appoints the developer without any competition to undertake them.

      There are approaches which minimise or avoid the risk in relation to procurement, such as requiring contributions and/or land transfer with the local planning authority procuring the works rather than the developer.

      Most Authorities will by now have taken advice on the approaches which it will take in connection with such issues and it is likely that you would have to adopt that approach. If you wished to persuade them of a different approach you would need to provide the justification on which it would meet procurement requirements.

      Happy to discuss other alternative approaches to dealing with the procurement "obstacle"

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    • Re: Re: Re: S106 Agreements & EU procurement rules
      Name withheld - 08 Aug 08 16:46
      shaun,
      good point, 278. however, where the site is large and major on site works are required, there is no way a major developer is going to let a LPA or third party be responsible for delivery of major infrstructure unless there is a contractural arrangement with bonds and penalties in place. Can not see many LPA willing to take the risk on delivery if failure to deliver results in the developer suing the council big time.
      As for land transfer, developers may do it for schools provision and let the County provide, but if they do not provide then land will have to transfer back to the developer. it certainly will not happen for affordable housing.
      Why do i think planning obligations has become even more messier?
      Simple answer? Scrap s106, scrap CIL, bring in a simple all encompassing land tax per ftsq, payable by the developer to the council as the scheme progresses, the council then has the capital to prcure infrastructure and affordable and schools etc. Simple!

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    • Re: Re: Re: Re: S106 Agreements & EU procurement rules
      Posted by Shaun Jamieson - 11 Aug 08 12:55
      Thanks.

      Funny how these things come round cyclically.

      Agree with the LPAs not being prepared to take on additional risk - but perhaps the appropriate route for this would be to provide collateral warranties from the contractor to the developer and put into s106 (or other arrangement with the developer) provisions for taking over of actions against the contractor in certain circumstances. LPA would only be under obligation to the Developer to use reasonable endeavours to enforce. One might include the developer as part of evaluation panel etc to give additional comfort.

      Bit complicated but could be worked through

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    • Re: S106 Agreements & EU procurement rules
      Name withheld - 08 Aug 08 16:18
      Rob
      It would be particularly useful if the original opinion could be published and made available along with the two others subsequently referred to. This is an issue that requires some detailed consideration.
      Clearly there are drafting issues associated with the identity of the applicant/party to the s106 planning obligation and provision can be made for example in the defnitions section for the contract/contractor to provide for the subsequent application of the advertisement/tender process. It may also be the case that obligations need to be phrased in the negative to protect the integrity of the s106 and any subsequent planning permission from challenge.

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    • Re: Re: S106 Agreements & EU procurement rules
      Posted by rob smith - 10 Nov 09 16:31
      People interested in this debate will no doubt have seen that the Office of Government Commerce (OGC) has now responded with the publication on 16th Oct 2009 of guidance on the application of the Roanne case and on the applicability of the procurement rules to development agreements generally. The paper can be found here>
      http://www.ogc.gov.uk/documents/PPN_11_09_Development_Agreements.pdf

      You may also be interested in this article written by Simon Kelly (Associate in the planning and public law team at Denton Wilde Sapte) published in Planning on 4th Septembe 2009r.
      http://www.planningresource.co.uk/careers/features/930995/Legal-Report---Case-mistaken-identity-clouds-procurement-issue/

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Advisory Team for Large Applications (ATLAS), 2010

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