NILGA Response to PPS23
The following is the NILGA response to the consultation document and draft guidance
published by the Department in January 2011 and requiring response by 6th May 2011.
Caveat: This response has been prepared during the run-up to the 2011 Local
Government Election and consequently has had only limited elected member
oversight. A number of local government planning officers have been involved in the
preparation of this response.
This consultation considers the proposed planning policies for ‘Enabling Development’ in
Northern Ireland, and the draft guidance expands on the key issues covered by the draft
Planning Policy Statement. NILGA is keen to ensure that the final version of PPS23 is fit for
purpose on behalf of councils and the communities we serve, and looks forward to being
able to corporately scrutinise this with and on behalf of the local government sector.
For further information or to discuss any of the issues highlighted, please contact
at the NILGA Offices:
Chief Executive
18th April 2011
INTRODUCTION
NILGA, the Northern Ireland Local Government Association, is the representative body for
district councils in Northern Ireland. NILGA represents and promotes the interests of local
authorities and is supported by all the main political parties. Planning is a key issue for local
government due to the huge impact it has on the shaping of local communities, the economy
and sustainability. NILGA is pleased to be able to have an opportunity to comment on
PPS23 and we trust that our comments will be taken into account when developing the final
policy.
Although this policy and guidance are largely straightforward, drawing heavily on existing
English policy, NILGA wishes to present a number of concerns with the draft proposals and
has set these out below.
KEY ISSUES
A. Planning Policy Statement
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Need for this Policy
NILGA acknowledges and supports the need to safeguard Northern Ireland’s heritage
assets. We also accept that ‘enabling development’ can help fulfil this objective by securing
the long term future of a place of heritage significance. Furthermore, it is evident that a pre­
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application discussion between the planning authority and the developer would be most
useful in cases to which this Policy would apply.
A number of concerns have been expressed regarding the need for this policy.
It is noted that other jurisdictions are currently streamlining their planning policy guidance,
and would question why Northern Ireland is adding to ours. Draft PPS23 has been written in
such a way that it considerably expands the remit of what constitutes enabling development
so that it no longer solely concentrates on safeguarding heritage assets. Instead it is
conceived as a wider concept that can be applied to most development proposals, and
NILGA is concerned that this approach may result in developers not attempting to conserve
heritage assets at all, if the incentive of enabling development is made equally available for
new build schemes.
Additionally, there is a substantial body of case law in regard to the issue concerned, and it
is questioned as to whether this policy ‘adds value’ in that context. If the policy aims to
provide easily understood information for the public, by expanding on that case law, then the
use of simple language is required.
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Implications
The concept of ‘enabling development’ was introduced in other regions to secure the
retention of heritage assets. NILGA is therefore concerned that Draft PPS 23 has been
expanded to widen the application of ‘enabling development’ to include regional and sub­
regional development schemes.
Draft PPS 23 has greatly increased the circumstances in which it could be used to permit
enabling development (that is development which would normally be refused) to include
‘schemes of significant regional or sub-regional public benefit.’ Draft PPS 23 does not
specify what constitutes regional or sub-regional schemes, therefore most medium to large
scale applications could effectively seek to be classified as such. Even moderately sized
applications could aim to be described as having a sub-regional public benefit.
Draft PPS 23 also states that enabling development may also be acceptable to secure the
future of a non-listed building of local significance. Again, there is no clear definition of what
this means and the scope for interpretation is immense.
Added to the above, Draft PPS 23 has introduced the term ‘principal proposal’ to apply to
schemes of ‘significant regional or sub-regional public benefit’. This then makes it possible
to confer the status of ‘enabling development’ to a contentious part of a scheme which must
be permitted in order secure the development of the remaining part of the scheme (the
principal proposal).
A proposal could be based on an unsatisfactory interpretation of ‘regionally significant public
benefit’ in direct contrast to existing planning policy and practice.
At the regional level, the concept of enabling development under Draft PPS 23 could be
tailored to serve particular interests as opposed to the wider public interest and longer term
sustainability.
Therefore, if the wording of Draft PP23 is adopted in the current form the unrestrictive, highly
contentious planning applications which are contrary to planning policy could seek to obtain
planning permission simply on the pretext of securing non-defined (in the draft PPS) ‘public
benefit’. The guidance as to the measures of any potential public benefit and a mechanism
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to balance this against any assessment of potentially adverse impacts has not been included
in the proposed policy or guidance.
NILGA is concerned that the reference to ‘the cessation and removal of undesirable use
elsewhere on land in control of the applicant, where appropriate.’ could result in a situation
where a landowner or developer could intentionally blight a site with a view to obtaining a
more lucrative planning permission. For example, a green-field or under used site could be
turned into a scrapyard in the knowledge that, under Draft PPS 23, planning permission may
then be granted for housing as a preferable alternative.
Further clarification is required on what is meant by ‘a range of leisure facilities’. Under Draft
PPS 5, leisure facilities are defined as ‘Indoor or covered recreation and leisure facilities
including swimming baths, skating rinks, gymnasium and other sport halls; cinemas, concert
and dance halls, theatres, amusement arcades and centres, restaurants, cafes and licensed
premises.’ NILGA would not consider that the development of cinemas and amusement
arcades merits finance through enabling development. Accordingly, the range of leisure
facilities in Draft PPS 23 needs to be more clearly specified.
NILGA is concerned that Draft PPS 23, in its current format, could be challenged and has
the potential to enable highly contentious development proposals to be permitted. The policy
proposed needs to be refined so that it can help protect and sustain Northern Ireland’s rich
legacy of historic buildings and sites
Given the need to express relevant concepts in an easily understood manner, it is suggested
that the glossary of terms, currently on Page 69 of the accompanying guidance document
should contain definitions of all of the terms queried above.
It is noted that the guidance draws heavily on the English Heritage document “Enabling
Development and the Conservation of Significant Places” (2008). The English document
highlights relevant case law and uses diagrams to simplify the explanation of the planning
process for the reader. It is suggested that Northern Ireland examples are used in the
document to illustrate issues, and that an ‘NI-appropriate’ version of the diagram in Section 4
(Page 20) of the English document is used to set out the process in a more visual manner.
It is suggested that a more full amplification and explanation of the financial requirements the
developer must consider should be highlighted in the policy document itself, as there seems
to be a very ‘light touch’ in comparison to the detail given on the guidance document.
B. Accompanying Guidance
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Role of Councils
Greater clarity is needed within the guidance in relation to the role of district councils at
present and post-transfer of the planning function. As the reader moves through the draft
guidance document, the terminology changes, from ‘planning authority’, to ‘local authorities’
(section 5 onwards).
In addition, although it is appreciated that we are in a time of change, it is suggested that the
Department finds a methodology to deal with the transfer when writing all Planning Policy
Statements, to ensure that revision is not overly burdensome post-transfer.
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Summary
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It is suggested that consideration should be given to the provision of an Executive Summary
at the beginning of the guidance document, as is present in the English Document. This
should have the effect of making the guidance more user-friendly and would result in wider
and higher consultation impact.
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Roles and Responsibilities
In Section 2 of the guidance, the role of the Planning Authority seems to have been omitted,
apart from a brief mention in paragraph 2.2.2. Although this would need to be reviewed after
the transfer of planning to councils, it is a necessary part of the document and a paragraph
appropriate to Northern Ireland should be inserted.
It may also be necessary to insert a proviso, post-transfer, for instances where the council is
an applicant, or part of a wider consortium of applicants.
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Planning Brief
It is also noted that the NI guidance has a much lighter touch in relation to the preparation of
planning briefs by the planning authority than is evident in the English document. It is
appreciated that the preparation of specific planning briefs for particular buildings and places
would be a task that is more easily performed at local level and that there may be cost
implications. Nonetheless, it is suggested that the preparation of briefs is important and
might form part of the preparation of the local development plan, in liaison with district
councils. NIEA should also be involved. Perhaps there could be a small admin charge for
access to a planning brief, if cost is the main consideration.
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Financial Expertise
The need for the planning authority to have significant access to financial and property
expertise is clear from the guidance document. This expertise may or may not be held in
Planning Service Divisions currently, but pre-transfer there should be an exploration of the
skills available within local government and a cost-benefit analysis undertaken through the
ICE programme in relation to retaining or employing specialists, or procuring consultants.
The one-off nature of the applications likely to be affected by PPS23 may militate against a
consistency of service provision, but it would be worth exploring to gain important evidence
of real costs and impact.
It would also be useful for the planning authority to establish a policy in relation to seeking an
applicant’s contribution to costs (as mentioned in 3.7.2)
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Information on Grants Available
It would be helpful if information on available grants was given in the guidance document, for
example at section 4.3.5.
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Community Participation
It is agreed that community consultation is important, which would again highlight the
importance of the preparation of a planning brief for appropriate sites. If this is done and
linked to the development planning process for an area, the community can be consulted in
a more holistic manner, and the enabled development can be considered within the wider
context of the development of the whole local area.
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Enforcement
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Adequate and timely enforcement of this Policy and Guidance is critical, to ensure the
integrity of the original plan for the site is maintained, to avoid the sell-off of land attached to
buildings and to ensure the prevention of unsuitable incremental development. Local
government is keen to begin discussions with the Department as to how planning
enforcement generally is to be resourced post-transfer.
General Comments
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Developer Contributions and the Community Infrastructure Levy
We have noted recent moves by the Department to introduce aspects of this idea, e.g. into
PPS18 and in the consultation on Planning reform. Clearly, the idea of enabling
development is also related.
We also note the introduction of the Community Infrastructure Levy in England and Wales in
April 2010. This levy allows local authorities to raise funds from developers undertaking new
building projects in their area, money that can be used to fund a wide range of infrastructure
needed as a result of development. This can include transport schemes, flood defences,
schools, hospitals and other health and social care facilities, parks, green spaces and leisure
centres.
NILGA is keen to participate in a wider debate on the issue of developer contributions and
the Community Infrastructure Levy, on behalf of and with the local government sector in
Northern Ireland.
Further engagement with the Department on the issues arising from PPS 23 would be
welcomed, utilising NILGA structures and mechanisms, and in particular, the NILGA
Planning Working Group.
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