INTRODUCTION

1. Since the finalised versions of these two documents will need to be read together, and there are some inconsistencies in the current drafts, it aids clarity for the Society to set out its observations on the two together.
   
   
2. We shall begin with some general observations, then address transitional and other important issues, and then make some more detailed comments on the two draft documents.

GENERAL OBSERVATIONS

3. Getting the Key Messages Across - It is now clear that the Bill does not merely change the existing system of development plans, but replaces it by a system which is very different and requires significant changes in thinking and approach.  It is also apparent that many planning practitioners are struggling to come to terms with the extent of the changes.  There is a distinct risk that people will attempt to engage with the new system by relating its stages to those under the existing where that is simply not valid, and in doing so may seriously misdirect themselves at the outset.
   
   
4. The Society therefore urges that both the PPS and the Guide should begin with a clear exposition of the new system, the important ways in which it differs from the existing, and the key implications for practice.  This should cover the requirement to incorporate SEA and sustainability appraisal, with testing at each decision-making stage; the change to a spatial plan; the statutory function of the SCI; the principle of front-loading decision-making on the overall strategy underlying the plan, including the introduction of a formal options stage; the change in the function of the inquiry to an examination of the soundness of the plan, and the consequent requirement for a robust base of evidence; and the Inspector's report becoming binding.
   
   
5. It will also greatly aid understanding to build the text of both documents so far as possible around the chronological stages of LDF preparation.  Practitioners will need to comprehend what is required at each stage of plan preparation, and how the various stages relate to each other.  In this regard, we were surprised to see so little coverage of SEA and sustainability appraisal(SA) in the draft PPS 12, and their virtual absence from the Guide.  We consider this a serious omission having in mind how important SEA and SA will be both as ongoing aspects of the planning process and in examination of the soundness of the plan.  We are aware that separate guidance is to be prepared, but there is an important process issue about tying SEA and SA into the relevant decision-making stages, which is lost in the draft as it stands.
   

6. The Process Diagram - We are concerned that the process diagram at Figure 4 of the Draft PPS and under paragraph C1 of the Code of Practice is both unclear and does not accurately reflect the process of DPD preparation.  Practitioners will put considerable importance on the diagram to assist them in understanding the relationship between the various stages in the preparation process, and it is therefore essential that it is both clear and accurate.  We have identified the following concerns with the current version of the diagram -
   
   
   • It shows different elements of the process within the same stage as if they were in parallel, when in fact one comes after another.  This is particularly the case with the examination and adoption stages.  If the objective of this form of presentation was to save space we suggest that it was misguided.  It would be better to present the diagram in landscape format so that successive stages can be clearly presented as such.
     
     
   • Sustainability appraisal is shown as if it was restricted to the production stage, whereas it will run all the way through the process of DPD production from inception to adoption.  Indeed, we would suggest that because of the time that will be involved in establishing the base position for SEA and SA, it would be better to show sustainability appraisal as already being under way when DPD preparation commences.  This also needs to be dealt with in the ordering of Section 4 of the draft PPS.
     
     
   • There is stage missing from the diagram.  The draft PPS says at paragraph 4.4.2 that following the submission of the DPD to the Secretary of State and the representation period, representations including proposals should be published with an invitation to submit representations upon them.  We have particular observations on this stage which we shall return to later.
     
     
   • Evidence gathering is shown as an input to the LDS, but not to plan production.  The reality is that while some information will be collected to inform LDS preparation and review, notably monitoring information, most evidence gathering will take place within the production stage, in the form of technical studies such as the capacity study.
     
     
   • We do not understand the two way arrow between pre-submission community involvement and submission to the SoS.  How can pre-submission consultation apply after submission?
     
     
   • The version of the diagram in the draft PPS does not show annual monitoring in the way that the Code of Practice version does.  Monitoring does not just feed back into the beginning of the process, but should be shown as an input at each stage of DPD preparation.
     
     
7. Engaging Partner Organisations - The change to spatial plans will mean that delivery will not rest simply with the planning authority through its development control powers, but some key elements will depend on other agencies for delivery.  This suggests a shift from simply consulting such agencies to engaging them more closely, as effectively partners in delivering the plan.  It can also be expected that where proposals or policy go to the heart of the plan, or are contentious, the relevant agencies will need to support the planning authority at the examination into the plan.  None of this comes across in the drafts, and really ought to.
   

TRANSITIONAL PROVISIONS

8. Most planning authorities have a substantial body of planning policy and guidance which has been developed at considerable cost and taken through the proper procedures to adoption, including public consultation and inquiry.  They will be very concerned about two matters in the transition from the old system to the new -
   
   
   • that they should not lose or see put at risk the ground that has been gained in development plan policies and in established supplementary guidance, and
     
     
   • that important ongoing policy provisions, such as defined Green Belt boundaries, should not be opened up to challenge as part of preparing an LDF where there is no need to do so
     
     
9. Our understanding of the transitional proposals raises a number of concerns, together with some important questions to which we cannot find the answers in the current drafts. 
   
   
10. Saved plans - Some of these concerns arise out of the approach to saving existing development plans pending the preparation and adoption of LDFs.  In the past when changes were made to the development plan system, existing plans remained in force until replaced by a new plan under the changed system.  By contrast, this time the Government proposes that saving of existing plans should be limited to three years, unless the Secretary of State agrees to their extension for a further period.  We can understand the Government's wish to move from the existing to the new system as soon as possible, and to see a cut-off on saving plans as an incentive to get on with LDFs, but feel there are real risks in what is proposed.
    
    
11. This raises our first question.  If the Secretary of State does not agree to an extension, or the planning authority does not make application for an extension in time, (or does not get a decision from the SoS in time), what happens to the existing plan?  Does it effectively disappear in its entirety, leaving nothing behind?  If the answer is "Yes", allocated sites for housing and other development will no longer be so allocated, important policies will disappear, and so will key policy boundaries, such as the detailed boundary of the Green Belt.
    
    
12. There are other potential implications.  Since LDFs will be folders of plan documents, which may be prepared over a period of time, that is likely to mean that some DPDs will be prepared after the three year cut-off.  This could require planning authorities to seek approval to extend parts of their existing plans, where other parts have been replaced by provisions of LDDs.  This must be likely if authorities prepare their core policies first, in advance of area action plans or other legitimate LDDs.  Authorities will need to be very alert and careful in tracking through their existing policies and proposals, and making sure that significant provisions which are not fully replaced by new DPDs remain saved, and that appropriate and timely application is made to the SoS where the three year period has expired.  There is clear potential for debate and confusion here, with the resultant risk that authorities, the communities they serve and landowners will inadvertently lose an important aspect of planning policy.
    

13. 13 We are also intrigued to contemplate what would be the practical situation where a plan or parts of it were to fall away without a replacement yet being in place.  If the preparation of a relevant DPD was advanced it would be a significant material consideration, and so could be important in decision -making.  But it would seem odd for decisions to have to be made solely against an emerging plan, when otherwise the existing statutory development plan would have been the starting point.
    
    
14. And what if there was no emerging DPD yet (perhaps because the authority had not yet reached submission to the SoS)?  While the "lost" development plan would have no formal standing, in the absence of anything else both developers and the planning authority would have cause to refer to it as some kind of basis for decision-making.  It is suggested that in reality, lost plans would still have to be extensively used until relevant DPDs were adopted.
    
    
15. Drawing this together, the view of the Society is that in the change to a new and unfamiliar system, the risks associated with the three year cut-off on saving existing plans are too great to take.  We suspect that in practice this would lead the SoS to give extensions of time almost automatically, even where an authority was slow in progressing its LDF, as being preferable to leaving no statutory plan in place.  One has to question whether the proposal would be of any real effect.
    
    
16. If, notwithstanding these observations, it is decided to leave the three year saving period in place, the Society would urge -
    
    
    • that both the PPS and the Guide should make it clear that there will be a presumption in favour of extending the saving period.   At present there is inconsistency between para 5.2.3 of the former and para 5.2 of the latter, which is considered unrealistic anyway, for the reasons set out here.
      
      
    • that advice is also included that as the three year date approaches, all authorities should review where they are with LDD preparation and make appropriate and timely application to extend their existing development plan or parts of it which have not yet been replaced, as the case may be.
      
      
17. On a more detailed point, we can see no reference to a District Council being able to save policies from the structure plan, (this apparently being restricted to the Regional Planning Body).  There are instances where structure plan policies are used in development control, or to set a clear context, and where Districts may be expected to see the need to retain such policies where they will not be of sufficient strategic importance for the RPB to do so.  Unless we have misunderstood the matter, we suggest that this should be covered in the transitional provisions.
    
    
18. Saving Supplementary Planning Guidance - As noted above, many authorities have over the years produced a substantial amount of supplementary guidance, which is used to guide development and assist applicants and other parties.  Clearly, as part of an orderly transition to the new system, authorities should be able to continue to use and apply their existing SPG, albeit recognising that it will not have the same status as supplementary planning documents(SPDs) prepared under the new system. 
    

19. However, concerns have been raised with us as to what will happen to existing SPG.  There is an interpretation that where a development plan policy falls away (through replacement by a DPD or the three year cut-off), any SPG which was prepared against that policy will also fall away, and cease to be of effect.  The Society  hopes that this is incorrect, but clearly it is very important for planning authorities, and we would urge that the matter is considered to ensure that existing SPG will not be at risk.  In the event that the interpretation quoted here is correct, then there needs to be a provision in Transitional Regulations saving existing SPG until the planning authority chooses to replace or revise it through an SPD.
    
    
20. Limited plan review - Under the present system, an authority reviewing its local plan or UDP can specify which aspects of the existing plan are to be reviewed and which are not; and turn away objections which seek to open issues which are not covered by the review, subject to a possible adjudication by the Inspector in relation to specific objections.  It is not clear to the Society whether the same will apply under the new system, or whether in fact in preparing their first LDF authorities will have no option but to expose every aspect of current policy to potential challenge.  We would welcome clarification and, hopefully, reassurance on this point.
    
    
21. Transitional arrangements in plan preparation - The Society is concerned and, frankly, confused by the proposed arrangement where a plan being taken forward under the current system has passed first deposit by the commencement date, but has not yet had an Inspector appointed.  Paragraph 5.3.2 ii of the draft PPS says that in this situation "the entire plan, including any changes the authority wish to make, will need to be re-consulted upon to allow for objections to be made on the basis that there will be no modification stage". 
    
    
22. We understand that this provision has been made on the advice of ODPM lawyers, the argument being that people who had anticipated the right to object at modification stage will have it withdrawn by the change to a binding Inspector's report, so it needs to be reinstated by requiring re-deposit.  However, this does not stand scrutiny.  It will offer very little benefit to customers of the plan, because they will already have had the opportunity to object to the second deposit plan, and there are unlikely to be significant proposals by the planning authority to make further changes to the plan.  More to the point, the value of the modifications stage is that it enables objections to be made to the changes which the authority proposes in the light of the Inspector's report, which clearly will not apply under the arrangement proposed.
    
    
23. While the gain to customers from the proposed re-consultation is frankly nebulous, it will create delay at the same time as the Government is urging progress in plan production, and involve further cost.  The Society's view is that this will be a deterrent to proceeding on the existing development plan system, causing some authorities to take the view that it would make more sense to abort work under the old law and instead switch to preparing an LDF, but of course on a longer timescale because they will have to begin at the beginning again.  We urge the Government to reconsider this provision, which we consider both ill-advised and fruitless.
    

24. The function of the inquiry - Continuing with the theme of plans being taken through to adoption under the existing system, the Society seeks clarification as to when the function of the Inspector changes.  It is clear that if the Inspector is appointed before the commencement date, the plan will proceed entirely in accordance with the current law, and the role of the Inspector will be solely to conduct an inquiry into objections.  It is also clear that in the case of an LDF, the function of the Inspector will be primarily to conduct an examination into the soundness of the plan.  But what of the hybrid situation, where the Inspector has not been appointed by the commencement date, and the plan proceeds broadly under the present law, but the Inspector's report is binding?  Will the function then become an examination of the soundness of the plan at the same time, or will it continue to be an inquiry into objections?  It is essential that this matter is made quite clear in the PPS and Code of Practice so that all parties know in advance what rules they will be playing under.

THE STATEMENT OF COMMUNITY INVOLVEMENT

25. The Society is surprised to see that although the content of the SCI is covered at some length in the draft PPS, and there is an extensive section in the draft Code of Practice on the process for its preparation and examination, there is no advice on when it should be prepared.  Our view is that authorities would be well advised to prepare and adopt their SCI early in the new system, as the first or one of the first DPDs, and that the PPS and Guide should make this clear.
    
    
26. While minimum standards for consultation are to be set by Regulations, just how individual authorities go about consultation will be of considerable interest to local groups and individuals, and may well be contentious.  We have no difficulty in imagining circumstances where certain organisations present forceful objections to a plan, contending that it is unsound because the arrangements made for consultation were inadequate.  They will argue that local people should have been afforded the right intended by Parliament to influence the approach to consultation, that the particular circumstances of the area or particular interest groups demanded a properly-tailored approach, and that consequently their interests were prejudiced by the approach taken, and therefore that the plan is fatally flawed.  The planning authority may argue that it has complied with the minimum requirements set out in Regulations, but the Inspector will have to give due regard to the evidence submitted, and may well conclude that the arrangements were indeed inadequate in the particular circumstances.
    
    
27. Moreover, given that authorities will not be able to bring forward statutory stages in LDF preparation before the commencement date and the adoption of their Local Development Scheme, it makes sense for them to progress their SCI in draft in the meantime, with a view to its early adoption.
    

GENERIC POLICIES

28. We have the impression that thinking is still evolving here, and has yet to firm up.  There is no reference to them in Section 2.2 of the draft PPS, but they then receive a whole section at 2.5, are covered (rather differently) in paragraph 1.1.7 of Annex A, and are not referred to at all in the draft Guide to Procedures, which merely refers to policies for the control of development.  Moreover, the draft PPS puts them after the section on supplementary planning documents, which is both illogical and potentially confusing.  The Society is an advocate of the use of generic policies, and considers that it would be wrong, for lack of anywhere else to put them to lump them into the core policies, since that would mix strategic and detailed material to the detriment of the clarity of the core policies.  We would therefore welcome consistent explicit advice that a DPD of generic policies will be good practice.

DETAILED COMMENTS

29. We have a number of detailed comments on the drafting and, in places, the principles behind the two draft documents.  We shall deal with the draft PPS first, picking up any further issues of inconsistency with the draft Guide to Procedures and Code of Practice.

THE DRAFT PPS

30. Section 1.3, spatial strategy content - this should be part of a wider exposition of the new system and its key features.
    
    
31. 1.3.2 - The clear link made here between the LDF and the community strategy is welcomed.
    
    
32. 1.3.3 iii - It is delusory to suggest that the community and stakeholders will agree and sign up to the vision for the plan.  Planning is about the resolution of competing interests, which will include differences of vision for the area.  All that can be aspired to is that the planning authority will develop its vision after thoroughgoing consultation and dialogue, but recognise and respect that some interests will disagree passionately, especially where substantial growth is provided for in the RSS.  Paragraph c.10 of the Code of Practice covers the related point about consensus on strategy more realistically.
    
    
33. Chapter 2 - We have made the point earlier that it is essential that the PPS sets out clearly at the outset the principles behind the new system and the key implications for practice.  This should come before Chapter 2.  Moreover, as argued earlier, it would make the PPS much clearer if the sections on the LDS and the SCI came before material on DPDs.
    
    
34. 2.2.3 - While it is right that the core strategy should take on board the range of relevant strategies, there should be explicit reference here to the requirement for conformity with the RSS.
    
    
35. Avoidance of blight - While we do not quarrel with the advice under this heading, it jars here, and would be better located later, after the main elements of the LDF have been covered.
    

36. 2.2.10 - There are two important, separate points here, whose impact is reduced by combining them.  The first is about the evidential foundation for proposals, and the second is to do with the use of criteria.  We suggest that they are separated and each made clear, with a link to Section $.2 on the evidence base.
    
    
37. 2.2.13 - We do not understand this.  It is a requirement that the LDS should set out all documents to be produced as part of the LDF, so how can the core strategy set out criteria for something which has already been established?  We advise that this is omitted.
    
    
38. 2.2.15 - The reference to saved policies here appears incorrect.  The proposals map is an LDD in its own right, and can surely only contain policies and proposals set out in DPDs.  Saved policies will not be part of DPDs, but hangovers from the existing system, so how can they lawfully appear on the proposals map?
    
    
39. As a separate issue, it is not clear where in the new system the general  extent of key regional policies such as the Green Belt will be set in future.  This is an important matter for practice.  If this will be an LDF function, we suggest that it is covered here.  If it is a matter for RSSs, it should be covered in the new PPS 11.
    
    
40. 2.4.2 - While we accept that supplementary planning documents should not include new land allocations, we suggest that it is made clear that, where a DPD proposes an area of mixed uses, it would be appropriate for a SPD to set out how the different uses would be deployed on the ground.
    
    
41. 2.5.3 - We suggest that a reference to the Society's imminent guidance on policy framing is included here.
    
    
42. 3.1.5 - It should be made clear that the SCI will apply not only to plan preparation but to development control also.
    
    
43. 3.1.7 to 3.1.10 - This section of text seems rather repetitive and lacks the conciseness of the rest of the document.
    
    
44. 3.2.3 - This connects back to our earlier point about selective reviews of plans, and being able to avoid putting all aspects of current policy up for challenge, and we would ask that the point is addressed here.
    
    
45. 4.2.1 - There should be a reference here to the importance of a sound evidence base in demonstrating the soundness of the plan at examination.
    
    
46. Section 4.3 - We have made the point earlier, in relation to the process diagram, that it needs to be made clear that SA and SEA apply throughout the process.  We are aware of the separate guidance being developed on SA/SEA, which will need to be reflected here.
    
    
47. 4.3.4 - DPDs are required to conform generally with the RSS, not merely have regard to it.
    
    
48. 4.3.5 - The concept of front-loading needs to be got across much earlier in the PPS.
    

49. 4.4.2 - We have several points here, as follows -
    
    
    • Just what would be published for representations?  The text currently refers to the representations received which propose alternative sites, but these representations could be numerous and lengthy, so is it really intended that they are published in full?  Surely a summary would suffice.
      
      
    • How would publication take place?
      
      
    • For how long?
      
      
    • How long would people have to comment?
      
      
50. 4.4.3 - The first sentence of this paragraph belongs before para 4.4.2.  What does the word "immediately" mean in the final sentence?  Reflection will show that it is impossible to publish immediately, given that some representations will be received on the last day of the representation period.  If a summary is to be used, that of itself will take some time to prepare.  We trust that such language will not appear in Regulations.
    
    
51. 4.4.8 - There should be explicit reference to the community strategy under the first bullet point.
    
    
52. 4.5.1 - We have three matters to raise here -
    
    
    • Given that the Inspector's report will be binding, surely he or she will set out conclusions, not recommendations, because there is will be nobody to make recommendations to.  The language of Section E of the Code of Practice is more appropriate.
      
      
    • But there is a bigger point here, about the Inspector producing a definitive report which resolves the plan.  The advice about not bringing forward new material to the examination is a key issue of practice for the planning authority, and ought to be brought out in the section we seek on the key principles of the new system and consequent implications for practice.
      
      
    • As for other parties, the advice ought to be framed quite differently, to say that since the plan will have begun to "set" following the consultation on options, new material only introduced at the inquiry will only carry limited weight with the Inspector.  This needs to carry over into the Code of Practice.
      
      
53. 4.7.3 - You will already have spotted the erroneous reference to the "development plan document" here.
    
    
54. Appendix A, 2.1.2 - Green Belts are not designated nationally.
    
    
55. Appendix A, 2.1.6 - The reference to "all lines" is not clear.  Should this not be something like "all notations"?
    

THE GUIDE TO PROCEDURES AND CODE OF PRACTICE

56. Overall - The same point applies here as to the draft PPS about setting out the principles of the new system, the key implications for practice, and chronological treatment of the various elements as an aid to understanding.
    
    
57. 1.8 - It is important to make it clear here that where the planning authority prepares several DPDs alongside each other, the usual practice will be to have an integrated examination process, rather than several separate examinations in front of different Inspectors.  This also needs to be covered in Section D of the Code of Practice.
    
    
58. 1.11, Section 2, and Section B of the Code of Practice - We have to take issue with the language here.  Continuous community involvement is impossible and therefore misleading- we have to do other things in between!  We suggest "ongoing" or similar language to convey the message that engagement will not just be a one-off process.
    
    
59. 2.5 - This is confusing.
    
    
60. A.2 - The reference to a pre-submission stage is not relevant to an SPD.
    
    
61. Diagram following B.1 - The same comments apply here as to the diagram showing the DPD process.
    
    
62. B.10 and C.17 - the third bullet point in each case should be amended to refer to the objector's view that the SCI or DPD fails the test of soundness.
    
    
63. B.14 - It appears that some words have gone missing after "…consider the soundness of the statement of community involvement".
    
    
64. C.6 to C.8 - This does not sit happily here, since it deals with the time before submission, while the following text is to do with the earlier stage of consultation on preferred options.  It would be better later.
    
    
65. C.10 - The third sentence is not clear.
    
    
66. C.11 - This glosses over the fact that the Inspector will need to consider the SA/SEA implications of any changes he/she is minded to make in finalising the plan.
    
    
67. Section D - See our comment on paragraph 1.8 of the Guide to Procedures.

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