Meet the other Ms Barker

[Mark]

Barker: I may have been wrong about needs test
Joey Gardiner, Regeneration & Renewal - 02 March 2007

Treasury adviser Kate Barker this week distanced herself from two of the
most controversial recommendations in her report into land use planning,
published before Christmas.

Barker told the Regenex conference in London that she may have been
wrong to recommend ending the needs test which forces developers to
prove that out of town retail development is necessary before being
granted planning permission.

She said: "I think it's possible that I and the people who advised me
didn't realise the extent to which planners seem to rely on it. I must
say it wasn't a point I felt particularly strongly about and the
argument is very much up for grabs."

In addition she said she did not mean her report to suggest that there
should be a presumption in favour of development in areas not covered by
a local plan.

She told Regeneration & Renewal: "What I mean is there should be a
clear-eyed look at the costs and benefits of a development in the
absence of a plan. The actual wording in the report may have been a bit
strong, and there will be plenty of negotiation about this."

------------------------------------------------------------------------------------------------------------------------------------------------------

Meet the other Ms Barker
Regeneration & Renewal - 02 March 2007

As a result of one woman's intervention, the legal frameworks that
dictate when developers need to conduct thorough environmental
assessments of their proposals have changed. Ben Wrighton tells the
story and explains the consequences.

As a flurry of reports emerged examining the implications of Treasury
economist Kate Barker's recommendations for changes to the UK planning
system, another Ms Barker was also making waves in planning policy.
Diane Barker, a single mother who lives with her daughter near Crystal
Palace Park, had complained that the decision to approve a final
application for a multiplex cinema development near her home was
unlawful. And the consequences of her complaint are important for anyone
working on large development projects.

On 25 January 1999, final - or 'reserved matters' - proposals were put
before the London Borough of Bromley for a significant development. The
plans proposed an 18-screen cinema with a leisure and exhibition area on
the ground floor, restaurants and cafes, leisure areas and public
toilets at the gallery level, a mezzanine floor of some 800sq metres,
and a roof-top car park with approximately 1,000 spaces.

At the committee meeting, a number of Bromley councillors asked for an
Environmental Impact Assessment (EIA) to be undertaken. EIA regulations
require developers to conduct research into the impact that their
proposals will have on the local environment. However, after legal
advice had been sought, the council was informed that, under UK law,
councils cannot insist that an EIA is carried out at the reserved
matters stage if at the outline stage a decision was taken not to
require an EIA (as it had been in this case). Subsequently, the council
issued a notice of approval for the development to go ahead on 10 May 1999.

Unlawful

However, Barker argued that, although it had not requested an EIA at the
outline stage, the borough still had the power to require an EIA at this
later stage under the European Council Directive of 27 June 1985
(amended 3 March 1997). The borough, she said, had been unaware of this
power. The case went to the European Court of Justice (ECJ), which
considered the case in May last year. Its rulings were subsequently
brought back to the House of Lords in December.

The House of Lords held that Bromley council had been mistaken in not
requesting an EIA at the final application stage, once more scheme
details and environmental implications were known. Furthermore, the
Lords declared the existing domestic EIA regulations to be unlawful, as
they do not permit an EIA to be undertaken at the reserved matters
stage, and therefore conflict with the European Council Directive.

The House of Lords' declaration has significant consequences for the
British planning system and major regeneration projects across the
country: it is clear that both developers and local authorities have
been operating for some time in a domestic system that is out of sync
with European regulations.

The procedure for granting outline planning permission has been in
existence in England and Wales for almost 60 years. Outline planning
permission (the 'principle' decision) and the decision that subsequently
gives approval of reserved matters (the 'implementing' decision) are now
considered to constitute a multi-stage development consent.

Large development projects are inherently complex and, as a result, a
substantial amount of time can separate the two application stages. This
means that environmental circumstances may change significantly during
this period and thus require reassessment.

The Department for Communities and Local Government (DCLG) will now
amend its guidance to address the judgments of the ECJ and House of
Lords. This process began in June 2006 with the circulation of proposed
amendments to Circular 2/99: Environmental Impact Assessment - the
Government's official guidance notes. Originally, the DCLG intended to
release the final amendments before Christmas, but it was felt prudent
to await the House of Lords decision. Currently, the DCLG anticipates a
late spring release for the final, revised document.

Accurate

In the interim, a belt and braces approach to screening and scoping EIAs
at both application stages should be adopted for major regeneration
projects.

In consultation with appropriate legal advisers, the following points
should be carefully considered when pursuing or considering outline
planning applications.

First, where required, an EIA needs to be carried out at the earliest
stage possible - in other words, before outline planning permission is
granted. This will ensure that the proposals have due regard to the
possible environmental effects of a new development from design
inception. Second, when presenting the results of an EIA to
decision-makers and the public at the outline application stage, the
proper approach to be taken continues to be represented by the Tew and
Milne judgments: essentially, these two cases mean that applicants can
no longer get away with assessing a conceptual scheme's environmental
impact, then building something completely different. Certain key
features of a scheme are set at outline planning permission and cannot
be changed later on. Consequently, the initial EIA should still be accurate.

Finally, provided that the EIA process is considered in a thorough
manner at the outline application stage, further consideration at the
final stage is only required in certain circumstances - for example, if
environmental effects were unidentifiable until this later stage.

It is essential to ensure that, even where an EIA was undertaken at the
outline stage, it is still accurate and takes into account any change of
circumstances. Such changes might, for example, include changes in
statutory guidance, or in methods of assessing issues such as changes in
flood risk.

While the implications of Kate Barker's review of the UK's planning
system remain to be seen, Ms Barker of Crystal Palace Park has already
made quite a mark on our approach to development control.

Ben Wrighton is an associate partner of law firm Donaldsons LLP.