Road Adoption Process Topic Group – 24 & 25 February 2010 Agenda Item 4(e) (4)
ROLE AND RESPONSIBILITY OF THE PLANNING AUTHORITY ON INTERNAL DESIGN AND EXTENT OF ADOPTION
Briefing note to Hertfordshire County Council’s Road Adoption Process [Scrutiny] Topic Group on 24 & 25 February 2010
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John Young, on behalf of HTCOA, recently Interim Head of Planning and Building Control, St Albans City and District Council[1]
- INTRODUCTION
1.1 The role and remit of a Local Planning Authority (LPA) – in Hertfordshire the District and Borough Councils – is set down in legislation, regulations and guidance. Highway matters, including adoption, are the responsibility of the County Council as highway authority.
1.2 It is established law that an LPA cannot, through the planning process, control or override other regulatory functions whether these are within the jurisdiction of the borough or district council or some other body. For instance planning cannot control licensing matters such as liquor licensing, pollution control or, say, the requirements of English Nature or the Environment Agency.
1.3 It has been suggested in some quarters that the LPA could use planning conditions to deal with highway adoptions. For reasons set out in this report it will show that this is not the case; the main references will be to Circular 11/95 and the ODPM’s letter of 25 November 2002.
1.4 However, where a Section 106 Obligation is required the legal agreement could, subject to the willingness of the developer to sign up, be extended to cover other legislative requirements such as the need for the applicant to enter into a Section 38 Agreement under the Highways Act 1980. It must be borne in mind that not all applications will require a s106 Obligation.
- THE PLANNING APPLICATION PROCESS
2.1 When a planning application is submitted which includes the formation of new roads or footways, or a new or modified connection to an existing highway, the County Council as highway authority is consulted by the LPA[2].
2.2 It is to be hoped that the applicants have referred to and incorporated the highway layout requirements of ‘Roads in Hertfordshire’ (RiH). It is unlikely, particularly in the case of outline applications, that any highway details other than width and alignment of the proposed road layout will be shown on the application. Very few, if any, applications whether outline or full set out the constructional aspects of the proposed road layout which it would be necessary to agree under s38. The same applies to surface water and foul drainage details.
2.3 The highway officer will advise the LPA (and the applicant either directly or via the LPA) of any amendments necessary to meet the requirements of RiH if there are deficiencies in this respect. Provided it meets the requirements of RiH and the planning policy criteria of the LPA it will be granted planning permission. If not, it will be refused which in the case of highway matters will lead to a highway reason for refusal.
2.4 At no point does the LPA, as planning authority, become involved in a discussion on whether the applicant proposes to enter into a s38 agreement. This is a discussion which takes place between the applicant and the highway authority. Whether the LPA should be involved is another matter.
2.5 Where an application is refused, whether on a highway issue or not, and is subsequently taken to appeal it is unknown for a planning inspector to seek to limit any subsequent grant of permission to the prior entering into of a s38 agreement.
- CIRCULAR 11/95
3.1 Circular 11/95 is entitled ‘Use of Conditions in Planning Permission’. It gives advice on the reasons for imposing condition, when they are appropriate and when not, the tests that are applied to conditions and outlines some model conditions for general use. The second Killian Pretty Review report[3] into making planning more efficient has led to a number of Government papers in response. The two most relevant are the consultation on ‘Improving the use and discharge of planning conditions’[4] and ‘Model planning conditions: consultation’[5]. These do not materially alter the thrust of this report.
3.2 The relevant sections of Circular 11/95 are paragraphs 20 to 23. These are set out at Appendix 1. Substitute highways for open space and the example quoted in para 20 is equally applicable to highway adoption. Because it cannot require the [highway] to be dedicated to the public it cannot be lawfully imposed . And dedication is the raison d’être of adoption.
3.3 Within Circular 11/95, paragraphs 64 to 72 deal with highway conditions. These are set out at Appendix 2. None of the advice refers to highway adoption and para 72 specifically warns against using conditions to secure such an objective stating quite clearly‘conditions may not require the cession of land to other parties, such as the highway authority’. Following from that it is apparent why the model conditions[6] set out in Appendix A to 11/95 do not cover highway adoption. About as far as an LPA can go is to restrict occupation until something has been provided or laid out, eg parking areas (model condition 20) or amenity land (model conditions 76 to 78). By analogy this could include the provision and laying out of a road or path but not its constructional specification.
3.4 An LPA cannot impose a condition worded in a positive form (para 38 of 11/95) which developers could only comply with the consent or agreement of a third party, eg the highway authority. It used to be possible to use a negatively worded permission if there were at least reasonable prospects of it being performed within the time limit of the permissiongranted – see para 41 which cites connection to a sewerage facility as an example. The Merritt case[7] changed this approach to one where if there were no prospects at all of the action being performed negative conditions should not be imposed.
3.5 A more recent case, this time in the Supreme Court, Barratt Homes v Welsh Water (December 2009) added another layer. This allowed a developer an absolute right to a connection even where capacity was restricted. It now seems that the matter can only be controlled by an LPA through a Grampian condition.
3.6 Planning conditions cannot control the constructional specification of a building and neither can it do so for a road or path. The former is dealt with via the Building Acts and Building Regulations, the latter via an adoption agreement. A planning application will often specify the materials to be used whilst a condition may specify this too, but that is only dealing with the external appearance, not the structural stability, integrity or workmanship involved. Because a highway to be offered for adoption has to be built to a certain specification this cannot be controlled by the LPA although it might want to specify whether a road or path is hard surfaced or not. The custom and practice is, and always has been, that highway design matters are the purview of the highway authority not the planning authority.
3.7 All of this is a somewhat convoluted way of coming to the point that an LPA cannot through conditions require an applicant to enter into a s38 agreement.
4. USE OF LEGAL AGREEMENTS
4.1The use of s106 obligations[8] is covered in Circular 05/2005, ‘Planning Obligations’. These agreements, which are entered into as a voluntary contractual obligation are a means for delivering or addressing matters that are necessary to make a development acceptable in planning terms. They can be used to support the provision of infrastructure such as highways, education, health, etc.
4.2Paragraph B52 of Annex B to Circular 05/2005 states that the guidance is not concerned with matters arising from other legislation citing, inter alia, the Highways Act 1980 which is cross referred to the former DETLGR Circular 4/2001.
4.3Some authorities couple a s106 with use of s111 of the Local Government Act 1972 which is a power for a local authority to do anything which helps it discharge its functions. Whether this can be rolled into a requirement to enter into a s38 agreement is a matter for others to comment on.
4.4A point worth noting is the statutory 8/13 week period in which to determine an application. Failure to do so renders an LPA liable to having to defend an appeal against non-determination. Given that most developments which will be constructing extensive amounts of new highway will be classified as ‘major’ applications, that gives a 13 week window to deal with the matter. The current government (and it is unlikely the next government whatever its political complexion will take a different approach) seeks to secure the expeditious delivery of housing and economic generation proposals. For this reason most LPAs will be loath to slow the determination of applications whilst a s106 waits to be signed by yet another party, HCC, unless they are already a party for other reasons.
4.5And one final consideration. Unless revoked by an incoming government, the Community Infrastructure Levy (CIL) will largely supersede what can be sought under s106. If CIL delivers what it promises to there may be no or much more limited calls for s106 obligations in the future. And LPAs may be loath to be drawn into one if the only reason is to secure a s38 Agreement.
5. INFORMATIVES
5.1An informative on a planning permission is completely unenforceable and does no more than draw the applicant’s attention to something, such as a need to secure some other consent or licence or giving information on contact points.
6. CONCLUSIONS
6.1A requirement to enter into a s38 Agreement cannot lawfully be dealt with through a condition on a planning application. It may be possible to include as part of a wider s106 Obligation. But that is by no means certain. An informative is just what says it is – information.
6.2The County Council as Highway Authority should follow best practice and require that there is bond or deposit in place to ensure that works on all developments where roads are to be adopted are completed in accordance with the specification appropriate for adoption. This would also ensure that inspections during the construction process are undertaken on a regular basis to secure compliance with the approved specification.
6.3None of the foregoing is meant to be a sectarian response (planner and highway engineer in separate camps) but a response to the suggestion which has emanated from HCC that somehow it is the fault of the planning system – note the resolution[9] of the St Albans Highways Joint Member Panel on 23 July 2009 which sought to place the burden firmly in the planning authority’s jurisdiction. Not only was the resolution ill founded but it was not capable of lawful implementation. Therefore, whilst there is a need for closer liaison and cooperation between planner and engineer the powers and duties of one cannot be a substitute for the powers and duties of the other.
6.4Nevertheless, there may be a case for approaching either parliament direct or via the LGA to seek a means to address the deficiencies in the current legal framework which allows developers to elect whether to enter into a s38 Agreement. Whilst some of the problems in Hertfordshire may relate to customs and practices of the past, the underlying issue is by no means unique to Hertfordshire – see Appendix 3 where the MP for Kettering, Philip Hollobone, secured an adjournment debate in the House of Commons on 11 November 2009.
APPENDIX 1 – EXTRACT FROM CIRCULAR 11/95 (paragraphs 20 – 23)
Relevance to Planning
20. A condition which has no relevance to planning is ultra vires. A condition that the first occupants of dwellings must be drawn from the local authority's housing waiting list, for example, would be improper because it was meant to meet the ends of the local authority as housing authority and was not imposed for planning reasons (but see paragraph 97 below). Although a condition can quite properly require the provision of open space to serve the permitted development (as part of a housing estate for example) it would be ultra vires if it required the open space to be dedicated to the public; other conditions affecting land ownership (requiring, for example, that the land shall not be disposed of except as a whole) would similarly be ultra vires.
Other planning controls
21. Some matters are the subject of specific control elsewhere in planning legislation, for example advertisement control, listed building consent or tree preservation. If these controls are relevant to the development the authority should normally rely on them, and not impose conditions on a grant of planning permission to achieve the purposes of a separate system of control (but on trees note paragraph 51).
Non-planning controls
22. Other matters are subject to control under separate legislation, yet also of concern to the planning system. A condition which duplicates the effect of other controls will normally be unnecessary, and one whose requirements conflict with those of other controls will be ultra vires because it is unreasonable. For example, a planning condition would not normally be appropriate to control the level of emissions from a proposed development where they are subject to pollution control, but may be needed to address the impact of the emissions to the extent that they might have land-use implications and are not controlled by the appropriate pollution control authority (for further advice on conditions and pollution see paragraphs 3.23--3.28 of PPG23: Planning and Pollution Control) (England only). A condition cannot be justified on the grounds that the local planning authority is not the body responsible for exercising a concurrent control, and therefore cannot ensure that it will be exercised properly. Nor can a condition be justified on the grounds that a concurrent control is not permanent but is subject to expiry and renewal (as, for example, with certain licences). Nor, as a matter of policy, should conditions be imposed in order to avoid a liability to pay compensation under other legislation. Even where a condition does not actually duplicate or conflict with another control, differences in requirements can cause confusion, and it will be desirable as far as possible to avoid solving problems by the use of conditions instead of, or as well as, by another more specific control.
23. Where other controls are also available, a condition may, however, be needed when the considerations material to the exercise of the two systems of control are substantially different, since it might be unwise in these circumstances to rely on the alternative control being exercised in the manner or to the degree needed to secure planning objectives. Conditions may also be needed to deal with circumstances for which a concurrent control is unavailable. A further case where conditions may be justified will be where they can prevent development being carried out in a manner which would be likely to give rise to onerous requirements under other powers at a later stage (eg. to ensure adequate sewerage and water supply for new developments and thus avoid subsequent intervention under the Public Health Acts).
APPENDIX 2 – EXTRACT FROM CIRCULAR 11/95 (paragraphs 64 – 72)
Highway Conditions
Parking, Public Transport, Walking and Cycling
64. Developments often generate extra traffic, usually in the form of haulage or delivery vehicles or cars belonging to residents, visitors or employees. Unless this demand is minimal (as it might be, for example, in the case of some very small firms), and unlikely to cause obstruction, space may need to be provided to allow for parking.
65. Any conditions specifying the number of parking spaces should support the locational policies in the development plan, but they also need to be reasonable in relation to the size and nature of the development and to satisfy the other tests in paragraph 14 above.
66. Sometimes parking space in the form of a lay-by will be satisfactory. More often a parking site separate from the highway will be needed. In the latter case, conditions should ensure, where necessary, that space is provided for the turning of vehicles so that they do not have to reverse on to the highway.
67. Where the authority decides that it is appropriate to require the provision of car parking spaces on other land under the control of the applicant, the development must be readily accessible from the car park.
68. In certain circumstances, developers may enter into a planning obligation with the local planning authority to provide off-site parking or to contribute to measures to assist public transport or walking and cycling-see paragraphs B5-B10 of DOE Circular 16/91 (WO 53/91) and PPG13: Transport (but not for Wales where the former version of PPG 13 [November 1988] continues to apply). Advice on how local authorities should integrate transport and land use planning is also contained in PPG 13.
Access
69. Where a service road is needed as part of a large development for which outline permission is to be granted, it may be necessary to impose a condition requiring all access to the highway to be by means of the service road. If such a condition is not imposed at outline stage it may not be possible to secure the objective at a later stage (see paragraph 45). Similarly, if it is desired that there should be no direct access on to a main road, or that access must be taken from a particular side road, a condition to that effect should be imposed on the outline permission, as without such a condition these restrictions could not normally be made at the stage of consideration of details.
70. A condition may require the provision or improvement of a service road or means of access even if such works are not included in the application, provided that they can be undertaken on the site in respect of which the application is made, or on other land which is under the control of the applicant and sufficiently relates to the proposed development. The condition should be framed so as to require the laying out or improvement of the means of access, or the relevant section of the service road, on defined land before the relevant buildings are occupied. (Policy advice and guidance about conditions requiring works in the highway is contained in Annex C to PPG 13: Transport (but not for Wales where the former version of PPG13 [November 1988] continues to apply)).
Lorry routeing
71. Planning conditions are not an appropriate means of controlling the right of passage over public highways. Although negatively worded conditions which control such matters might sometimes be capable of being validly imposed on planning permissions, such conditions are likely to be very difficult to enforce effectively. It may be possible to encourage drivers to follow preferred routes by posting site notices to that effect, or by requiring them to use a particular entrance to (or exit from) the site. But where it is essential to prevent traffic from using particular routes, the correct mechanism for doing so is an Order under either section 1 or section 6 (as appropriate) of the Road Traffic Regulation Act 1984.