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Agenda Item No

 

The Vale of Glamorgan Council

Cabinet Meeting:  19th November, 2012

Report of the Cabinet Member for Regeneration, Innovation, Planning and Transportation

Vale of Glamorgan Local Development Plan 2011 to 2026: Way Forward and Revised Delivery Agreement

Purpose of the Report

1.         The purpose of the report is to consider options available to the Council in producing a sound and sustainable Local Development Plan (LDP) for the Vale of Glamorgan.

Recommendations

Subject to consultation with Planning Committee and Economy and Environment Scrutiny Committee:

 

1.         That Cabinet considers all options available, as detailed in this report, in order to produce a sustainable LDP.

2.         That on balance and further to the consideration of all three options as detailed in this report, the Deposit LDP as approved by Council on 25th January 2012 and published for public consultation is not progressed and that work commences on a replacement Deposit LDP.

3.         That a further report is presented to Cabinet in due course in respect of the  replacement Deposit LDP.

4.         That the amendments to the LDP timetable contained within the Council's Delivery Agreement (June 2011) as proposed in this report be approved.

5.         That approval is sought from the Welsh Government to formally amend the LDP timetable contained within the Council's current Delivery Agreement (June 2011).

6.         That those individuals and organisations previously consulted on the drafting of the LDP Delivery Agreement be advised of the revisions to that Agreement.

Reasons for the Recommendations

1.         To allow a full consideration of all options, in order to produce a sustainable LDP.

2.         To enable the preparation of a replacement Deposit LDP which addresses the concerns raised by the Welsh Government and offers the opportunity for the Council to fully consider and respond to the representations made to the current Deposit Plan, as approved in January 2012.

3.         To enable Cabinet to consider and endorse a replacement Deposit LDP for public consultation purposes.

4.         To comply with Regulation 9 of the Town and Country Planning (Local Development Plan) (Wales) Regulations 2005.

5.         To comply with Regulation 9 of the Town and Country Planning (Local Development Plan) (Wales) Regulations 2005.

6.         To advise stakeholders and organisations previously consulted on the Delivery Agreement of the proposed revisions to the LDP timetable.

Background

2.         Cabinet will be aware that work on producing an LDP for the Vale of Glamorgan has been underway for 6 years and that the LDP has passed through several stages.  The first stage of the LDP process was to prepare a Delivery Agreement, made up of a timetable for the production of the Plan and a Community Involvement Scheme.  The original Delivery Agreement was approved by the Welsh Government in 2006 and has been revised on a number of occasions since.  The second stage in producing a LDP was to prepare a Vision and in January 2007 the Council agreed to adopt the Vision contained within the Vale of Glamorgan's Community Strategy (2003-13).  Between December 2006 and January 2007, all those with an interest in the LDP were then invited to submit 'candidate sites' for potential inclusion in the LDP and these candidate sites have since been included in a register.

3.         Stage 3 of the process involved developing and consulting on a Draft Preferred Strategy for the LDP.  The Draft Preferred Strategy was subject to a statutory 6 week public consultation during early 2008 and the Strategy was endorsed as a basis for the preparation of the Deposit LDP during early 2009.

4.         The Council is currently at Stage 4 of the LDP process, having produced a Deposit LDP and consulted on the same between 20th February and 2nd April 2012, following the presentation of reports to Cabinet, Planning Committee, Economy and Environment Scrutiny Committee and Council during January 2012.

5.         In terms of the Deposit Plan consultation undertaken approximately 1600 people responded to the Deposit LDP consultation and made over 5100 representations in respect of the various proposals in the Plan. Of these representations, circa 4700 were objections, with 220 expressing support and over 210 offering comments. Petitions were received from 23 groups.  Consideration by officers of the representations received during the consultation process has been ongoing since the representation process closed.

Relevant Issues and Options

6.         The report sets out the various options open to the Council in producing a LDP.  Having reviewed the situation and having regard to legislation, there are three possible options in terms of progressing a LDP for the Vale of Glamorgan.  These are:

7.         Option 1 – Continue with the current Deposit LDP.

National Policy indicates that Local Planning Authorities can make changes to the Deposit LDP following the public consultation on it and the Alternative Sites consultation (the next stage).  However, these changes should not impact on the overall LDP Strategy and the advice is that such changes should go forward with the submitted Plan for examination rather than supplant it.  The Council must explain why any changes are put forward and what new evidence there is for each change since the agreement of the Deposit Plan in early 2012.  The introduction of changes should be subject to the same process of publicity as the Deposit LDP to allow interested parties to comment on those changes.  The Council will need to carefully consider the impact of the changes on the soundness of the LDP taking account of its overall consistency and its Strategy as well as of the Sustainability Appraisal.  It is highly relevant therefore that the ability exists to make changes to the Plan, to add sites, delete sites, add new policies or change the wording of policies, provided that these changes do not result in a change to the Strategy.  Whilst the Deposit Plan includes policies and allocations that support this Strategy, specific allocations and site specific policies could be looked at and if necessary reviewed, provided the overall Strategy does not change.  The guidance on LDPs recommends that any changes at this stage are evidenced by sound reasons for making those changes.

8.         Option 2 –Start the entire process again, including a reconsideration of strategic options.

Section 66 of the Planning and Compulsory Purchase Act 2004 allows the Council to withdraw the LDP at any time before it is submitted to Welsh Government and the Planning Inspectorate for independent examination.  After the Plan is withdrawn, Regulation 26 of the Town and Country Planning (Local Development Plan (Wales) Regulations 2005 require the Council to advertise this fact and remove all documents made available for inspection.

9.         Option 3 – Cease work on the Deposit LDP as approved in January 2012 and commence work on a replacement Deposit Local Development Plan.

As a result of discussions with Welsh Government, it has been confirmed that it is possible to produce a replacement Deposit Local Development Plan and consult on it.  The Town and Country Planning (Local Development Plan) (Wales) Regulations 2005 do not cover this option of issuing a second Deposit LDP as the regulations are written on the assumption or understanding that the LDP continues to progress to the next stage in the process (see Option 1) unless the LDP is withdrawn (see Option 2).  Nevertheless, from discussions with Welsh Government it is clear that such an option exists and indeed has already been used elsewhere, as stated in paragraph 19 below.

Relevant Issues and Options

10.      Normally, the next stage of the LDP process would be to consult on the "Alternative" development sites which have been submitted as part of the Deposit Plan statutory consultation process.  These sites and any representations received on them, plus the representations received on the Deposit Plan would then assist the Council in determining the final content of the Plan to be submitted to the National Assembly for independent examination.  However, there are concerns that the Deposit LDP fails to meet the expectations of the Welsh Government, and these concerns are detailed below.

11.      The LDP’s Preferred Strategy as put forward as a Draft in 2007 and consulted upon during early 2008 is sound and provides the basis from which to develop an Adopted LDP for the Council.  It is clear that the legislation regards the Deposit Plan as a very important stage in the process and something that should flow from the earlier work of generating strategic options and selecting a Preferred Strategy.  However, an analysis of the representations to the Deposit Plan have led to serious concerns as to whether the approach to implementing the strategy is sound.

12.      Firstly, the Welsh Government expressed concerns and reservations about certain aspects of the Plan (letter attached at Appendix A). One of these is in respect of Minerals and is regarded by them as making the Plan potentially unsound (a category A objection).  The Welsh Government also raise concerns relating to infrastructure and the need for the LDP to secure the necessary infrastructure to support growth.  This is a concern that has also been raised in a significant number of representations, and is a concern that is acknowledged.  These concerns will need to be fully explored.  In addition, the Welsh Government has raised other concerns which need to be considered, including reference to the spatial distribution of housing, deliverability of growth and employment as well as some site specific issues relating to certain allocations.  It is essential that the Council secures the necessary infrastructure to facilitate the development proposed in the Local Development Plan.  There is, as a consequence, a concern that the Deposit LDP as approved in January 2012 does not include sufficient detail on the level of infrastructure required to support growth.  Representations indicate that there needs to be far more reference to the need to deliver transport improvements, across all modes to adequately mitigate new development as well as dealing with the issue of congestion in the eastern Vale of Glamorgan.

13.      It is noteworthy, that leading on from the above, the Welsh Government in their representations (Appendix A) refer to the fact that: “it is imperative that the Council secure the infrastructure necessary to deliver the development proposed in the Local Development Plan.”  The representations also refer to the fact that the Plan should include further explanation as to how the Community Infrastructure Levy (CIL) will relate to the LDP and vice versa.  The need to progress work on a CIL is also reported to this Cabinet.  Further information on how a consideration of the options available to the Council in producing a sustainable LDP impact on the Council's ability to progress a Community Infrastructure Levy is set out in paragraph 32 of this report.

14.      In addition, there are other specific issues that would need to be addressed in the LDP, in addition to those highlighted by the Welsh Government and concerns regarding infrastructure.  It is particularly relevant that a report is also being presented to Cabinet on the issue of Air Quality within the Vale of Glamorgan, which report seeks approval to consult on a proposed declaration of an Air Quality Management Area for a designated part of Windsor Road, Penarth, as a consequence of Nitrogen Dioxide levels derived from combustion mainly from traffic emissions.  The Air Quality Management issue and the proposed declaration of an Air Quality Management Area for part of Windsor Road, Penarth is a matter which will need to be considered in detail, in moving forward on work relating to the LDP.

15.      The changes which it is considered need to be made to the Deposit Plan as a result of the representations received and the recommendations of the Welsh Government go beyond what it is considered the process allows the Council to do at this stage.  Current Local Development Plan legislation and regulations are "silent" on any changes at this stage, although, some Councils have made small changes called "Focussed Changes" prior to submitting their Deposit Plan for examination by an independent Inspector.  Local Development Plan Guidance too accepts that sometimes there may be a need for changes at this stage, but again the emphasis from the guidance is that any changes should be kept to a minimum.  Given the concerns expressed on the Deposit LDP as approved in January 2012, it is considered that any changes required would go well beyond what could reasonably be considered to be 'focussed' or 'minimal'.  Even if the Council was to produce "Focussed Changes" there would be no guarantee that the changes would be accepted by an Inspector because they would be submitted with the Deposit Plan for his/her consideration at examination.  It would be up to the Inspector to decide whether to incorporate the Changes into the Final Adopted LDP not the Council.  It is considered that this is a significant key risk of such an approach.

16.      As has already been stated, the Preferred Strategy as put forward as a Draft in 2007 and consulted upon in early 2008 is sound.  Consequently to come up with a different strategy would be a costly and high risk decision which would mean justifying why a current strategy that focuses on national planning policy, sustainable transport connections, the location of regeneration opportunities and proximity to services was not appropriate.  For ease of reference, the LDP strategy currently involves the following four key elements:

 

·                Development in the South East Zone;

·                Development in the St. Athan Strategic Opportunity Area;

·                Cardiff Airport – Employment and Transport Opportunity;

·                Development in other sustainable settlements.

 

To this end Cabinet will be aware that all stages of the LDP are subject to Sustainability Appraisal.  The Strategy itself has been tested against the Sustainability Appraisal and found to be sound.  It has also been the subject of High Court challenge which was successfully defended by the Council.

17.      The further concern with such an approach is that it will result in a substantial delay adopting a LDP and will lead to potential difficulties when assessing new planning applications and defending decisions at appeal.  At the same time, applications can be submitted which reflect the Deposit LDP and the fact that sites are included in the Deposit LDP may well be used at appeal against the Council.  It should also be noted that Section 71 of the Planning and Compulsory Purchase Act 2004 gives the Welsh Government powers of default if it thinks an authority is failing or omitting to do anything necessary in connection with the preparation, alteration or adoption of the LDP and it can direct the preparation, alteration or replacement of an LDP within specified timescales, with that Plan being imposed on the Council.  If this occurred, the Council would be liable to pay for the costs of the process.

18.      The LDP is a very important statutory document which will determine the location of various land uses for the next 15 years.  As a consequence it is imperative that the final Adopted LDP contains the right mix of development for the Vale of Glamorgan and that it is fully supported by the necessary infrastructure.  It is for this reason that it is considered that producing a replacement Deposit Plan is the most appropriate way forward to enable the Council to produce a sustainable Development Plan for the Vale of Glamorgan.

19.      This Council is not alone in seeking to produce a replacement Deposit Plan.  Conwy County Borough Council has already produced a revised Deposit Plan.  The initial Conwy Deposit LDP was subject to public consultation between April and July 2009. As has been the case in the Vale of Glamorgan, the majority of objections to the Deposit LDP were made to the proposed development sites.  However, a significant objection (category A - the same category as the Minerals objection to this Council's Deposit Plan) was raised by the Welsh Government relating to the level of housing provision proposed in the Deposit LDP. The Welsh Government representation relating to Conwy's Plan stated that:

 

“the figure of 6300 (Static Population) does not appear to be supported by the evidence and as such lacks sufficient justification and the level of housing proposed does not tackle the evidence supported in the 2006 based Population and Household Projections for an increasing population in Conwy as a result of internal migration and household change."

20.      In the case of Conwy CBC the Welsh Government stated that there was a significant variation, with the preferred policy option showing a ‘stable population’ level over the plan period and the Welsh Government projections showing a steady growth in population.  The Welsh Government also raised questions as to whether paragraph 9.2.2 of the Housing Ministerial Interim Planning Policy Statement (MIPPS) has been adhered to in respect of the latest projections being the starting point for assessing housing requirements.

 

21.      It was clear from Conwy's Deposit LDP consultation that the proposed strategy was not tackling the priority issues impacting on Conwy and, in particular, the changes to the population structure, the demands it would create and the need for local affordable housing. Accordingly, following discussions with the Welsh Government it was recommended that Conwy produced a revised Deposit LDP to address the issues raised during the initial Deposit LDP consultation in 2009.

22.      Whilst this Council is not in the position that Conwy CBC found itself in back in 2009, the experience of that Council demonstrates that it is possible to produce a replacement Deposit Plan.

23.      Various options have been considered and taking everything into account it is considered that the production of a replacement Deposit Plan (option 3) is the only option which will allow the delivery of appropriate development and associated infrastructure for the area.   Accordingly, it is proposed that the Council commences immediately on the production of a replacement Deposit Plan which addresses and reflects concerns of consultees as well as attempting to rectify the concerns raised by the Welsh Government on the Deposit LDP.  A revised Delivery Agreement has been produced to reflect this position setting out a new timetable for the production of the replacement Deposit LDP and this is attached as Appendix B.

24.      Subject to the agreement of the revised timetable by the Welsh Government, it is anticipated that the replacement Deposit LDP will be published for statutory consultation in Autumn 2013, with the remaining stages set out in Appendix B.  A further report on the replacement Deposit LDP will be presented in due course, and the report will set out the proposals for consultation.  The consultation will be carried out to ensure the widest possible engagement and the forms associated with the consultation exercise will be as accessible as possible.  A series of update sessions will also be held in advance of carrying out the formal consultation exercise on the replacement Deposit LDP.

25.      It is possible that the Welsh Government may not approve the changes to the LDP Delivery Agreement and may decide to request that the Council continues with the Deposit Plan as it currently stands themselves.   Should this occur Cabinet will be advised accordingly.

26.      Cabinet should also be aware that the course of action being recommended is not without risk or cost to the Council.  A key issue is that of delay, in that this will extend the time period for which the Council will not benefit from an adopted LDP, at a time when indications seem to suggest that the Council's Housing land supply sits at 3.3 years.  This will potentially result in the Council being vulnerable to appeal decisions finding in favour of appellants seeking to develop housing sites that are not defined as allocated development plan sites.  In addition, there will be a delay in the Council implementing a CIL, the consequences of which are set out in paragraph 32 below.  The risks of taking this course of action, and the risks associated with the other options considered, are outlined under legal implications below.  The costs are estimated under the resource implications section below.

Resource Implications (Financial and Employment)

27.      The preparation of the LDP to date has been undertaken by officers within the Planning and Transportation Division within existing budgets.  The full cost of the process to date has been in the region of £1.5million with in excess of £300k of that total being as a consequence of technical and consultant support, consultation and engagement and defending a Judicial review.  It is estimated that to produce a replacement Deposit Plan over the next year will cost in the region of £250,000.  This mainly relates to staffing costs so is within budget.  However, elements of this cost will relate to the need to engage necessary assistance to ensure that the evidence base is sound and up to date.  Costs will also include the necessary consultation stage. 

28.      In addition it is possible that some interested parties who had sites allocated in the Deposit LDP will submit planning applications on those sites.  The Council will need to resource the determination of those planning applications and any planning appeals.

29.      It is possible that the Council may be challenged on any decision not to progress the current Deposit LDP and deciding to prepare a replacement Deposit LDP, or progressing either of the other options referred to in this report.  Any such challenge would need to be appropriately defended and there would be resource implications of doing this. 

30.      It is also relevant however to point out that there are also financial risks in progressing the other options detailed in this report.  The cost of producing a Deposit Plan to date stands at circa £1.5million.  To start the entire process again would result in all the costs expended to date being abortive. It is not considered that this would be a responsible or appropriate course of action, particularly given the option open to the Council to produce a replacement Deposit LDP.

31.      Were Cabinet to recommend that work on the current Deposit Plan continues with the emphasis on presenting focussed changes, there is a very significant risk that the changes required go beyond that which is permissible.  This would result in the Council having carried out abortive work with further abortive costs.

32.      The need to progress work on a CIL for the Vale of Glamorgan has already been referred to and this is a matter that is addressed in a separate report to Cabinet.  Members will note that a CIL will in part replace the use of Section 106 Planning Agreements from April 2014.  In order to benefit from a CIL a Local Planning Authority needs to have an adopted LDP in place.  Even if it was recommended that work on the current Deposit LDP (option 1) continues, there would be a delay before this Council could benefit from a CIL, given that on the current timetable it is not likely that the LDP would be adopted before April 2014.  The other options would lead to a more significant hiatus during which the Council would not be in a position to benefit from a CIL and make contributions to infrastructure improvements in the Vale of Glamorgan.  The production of a replacement Deposit Plan (option 3) will lead to a delay in implementing a CIL for the Vale of Glamorgan, and this is clearly disadvantageous, especially when we consider the need to invest in transport infrastructure.  However, on balance, it is considered that the production of a replacement Deposit Plan will allow for a further consideration of infrastructure requirements alongside the formulation of a CIL.

Sustainability and Climate Change Implications

33.      The replacement Deposit LDP will need to be subject to a new Sustainability Appraisal of all allocations and policies.  The LDP is a key policy document for taking forward matters relating to the sustainable use of land and buildings in the Vale of Glamorgan.  It is a key document in ensuring that all social, economic and environmental matters are addressed when considering new planning proposals.  It is essential in seeking to facilitate and promote beneficial development and involvement whilst at the same time ensuring the preservation and enhancement of our natural and built environment.

Legal Implications (to Include Human Rights Implications)

34.      Part 6 of the Planning and Compulsory Purchase Act 2004 places a duty on each local authority in Wales to prepare a Local Development Plan (LDP).  The Town and Country Planning (Local Development Plan) (Wales) Regulations 2005 prescribe the form and content of the LDP and state the procedure to be followed in its preparation. The Council resolved to commence work on the preparation of the LDP in February 2006 (minute no. C2288 refers). Once adopted, LDPs are used to guide and control development and investment within the authority, providing a basis for consistent and appropriate decision making.  The LDP Delivery Agreement sets out 7 key stages in the LDP preparation process.  The Council is currently at stage 4 and it is Stage 4 that would need to be repeated to produce a replacement Deposit LDP.

35.      Whilst the regulations neither make provision nor prohibit a second deposit stage, it is fair to note that since the 2004 Development Plan system came into operation a number of procedures have been adopted by the Planning Inspectorate and Local Planning Authorities and recognised by the Welsh Government as ways of allowing a flexibility in Plan preparation.  For example, following rejection of a number of early core strategies in England, the Planning Inspectorate recognised a greater scope for Inspectors to make binding recommendations for changes to Plans.  The key factor is to ensure that the changes have properly been subjected to Strategic Environmental Assessment.  Secondly, as noted above in this report, national policy recognised the desirability of Councils being able to respond to public responses in the Deposit Plan by means of changes at that stage.  Thirdly, as is also noted in the body of the report, in one case, Welsh Government has positively encouraged a second deposit in 2009 in Conwy and this was not subjected to Judicial review.

36.      There are legal risks with the Council deciding to not progress with the current Deposit LDP.  Any person aggrieved with the decision that the Council is taking may apply for leave to judicially review the Plan process at any time.  Indeed the Council has already been through one such Judicial review in 2009/10.  The Judicial Review process is costly and resource intensive and would also cause a delay to the Council in obtaining an Adopted Development Plan.

37.      It is also relevant to point out that there are legal risks in progressing other options detailed in the report.  In terms of option 2, a key risk relates to the fact that despite Welsh Government's concerns, it has not indicated that the Plan is unsound.  Whilst concerns are raised, these concerns do not lead Welsh Government to conclude that the Plan should be withdrawn.  To this end, it is considered that to follow option 2, especially when the Strategy is sound, would not be a reasonable decision.  If such a decision was taken, there is a risk that any person aggrieved with the decision could apply for leave to Judicially review that decision on the basis that it is unreasonable.  A further risk outlined in the report is that the Welsh Government could exercise its powers of direction under the 2004 Act and call in the Plan for the Assembly Government's determination, under Section 65(4) of the Act.

38.      In terms of progressing with the current Deposit Plan, the risk again relates to proposing focussed changes which go well beyond those that should be proposed. Again the risk relates to a potential legal challenge but also that the Inspector determines that given the likely quantity and significance of the focussed changes,  they could not be considered.

39.      It is clear therefore, that whichever option is progressed, each option is not without risk.

Crime and Disorder Implications

40.      None applicable to this report. 

Equal Opportunities Implications (to include Welsh Language issues)

41.      Public consultation documentation on a Replacement Deposit Local Development Plan will be in both English and Welsh.

Corporate/Service Objectives

42.      One of the service objectives for Planning and Transportation is "to develop a sustainable land use planning and transportation framework for the Vale of Glamorgan."  The preparation and adoption of the LDP is key to meeting this objective.  The adoption of the LDP for the Vale of Glamorgan will be one of the main service targets for the Planning and Transportation Division over the next few years.

Policy Framework and Budget

43.      This report is a matter for decision by Council.

Consultation (including Ward Member Consultation)

44.      No Ward Members have been consulted on the report as the matter has implications for the whole of the Vale of Glamorgan.  This report will become a public document and made available on the 13th November.  The report will be referred to the Economy and Environment Scrutiny Committee on the 4th December and Planning Committee on the 20th December.  Any comments following this consultation will be considered by Cabinet on the 7th January 2013.  It is intended that the report will be presented to Council on the 23rd January 2013.

Relevant Scrutiny Committee

45.      Economy and Environment

Background Papers

The Planning and Compulsory Purchase Act 2004

The Town and Country Planning (Local Development Plan) (Wales) Regulations 2005

The Local Development Plan Manual (June 2006)

Local Development Plans Wales (December 2005)

Wales Spatial Plan (2008 update)

Planning Policy Wales (5th Edition 2012)

Environmental Assessment of Plans and Programmes (Wales) Regulations 2004

The Conservation (Natural Habitats, & c.) Regulations 1994

ODPM  / WAG (2005) Practical Guide to the Strategic Environmental Assessment Directive

The Vale of Glamorgan Local Development Plan Delivery Agreement (June 2011)

Vale of Glamorgan LDP Sustainability Appraisal

Vale of Glamorgan Draft Preferred Strategy (December 2007)

Vale of Glamorgan LDP Habitats Regulations (Appropriate Assessment) Report

Vale of Glamorgan Deposit LDP 2011 - 2026

Letter from the Welsh Government dated 30th March 2012 in respect of representations  made to the Deposit Vale of Glamorgan Local Development Plan 2012.

 

Contact Officer

Rob Thomas, Director of Development Services - Tel: 01446 704630

 

Officers Consulted

Operational Manager Legal Services

Director of Resources

 

Responsible Officer:

Rob Thomas - Director of Development Services