Council chief believes plan rejected by Supreme Court may still be a runner

Martin Shipton

A chief officer at a council that lost an epic legal battle with one of its own councillors has argued that the authority’s controversial Local Development Plan can still be resurrected.

In a letter to all members of Wrexham council, David Fitzsimon, the chief economy and planning officer, puts forward the view that despite being rejected by the Court of Appeal and the Supreme Court, the LDP could still be implemented.

A legal case pursued in the name of Plaid Cymru councillor Marc Jones defeated attempts by council officers, developers and the Welsh Government to force the LDP through. Cllr Jones and others argued that the LDP would allow too many unneeded speculative housing developments to be built. They also resisted advice from officers that they had a legal obligation to accept the LDP.

Last weekend it seemed the lengthy dispute was finally at an end when First Minister Eluned Morgan said it was time to move on.

‘Withdrawn’

But Mr Fitzsimon’s letter suggests the battle could range on. He states: “The High Court decision relating to the S113 Application returns the Council to its original decision ‘not to’ adopt the LDP. It removes the adopted status of the LDP, but it does not remove the unadopted plan as a material consideration in decision making.

“For the LDP to be removed as a material consideration in decision making, it would have to be formally withdrawn. The Planning and Compulsory Purchase Act 2004 gives the Council the power to withdraw the LDP up to the point of submission to the Examination in Public, but not beyond this point. Only the Welsh Government has the power to withdraw following submission to the Examination in Public. The Council could ask the Welsh Government to withdraw the LDP, but would need to provide compelling reasons for doing so.

“To note, even if the LDP was to be withdrawn, the evidence base which underpins the LDP, such as the identified housing requirement, is still likely to be a material planning consideration and will be used by applicants to justify new developments.”

Advantages

Mr Fitzsimon went on to list what he saw as the advantages of continuing with the LDP, despite the outcome of the litigation:

The [earlier] Unitary Development Plan expired in 2011 and is very out of date. Further, the evidence base used to produce the UDP is 20 years old and national planning policy has changed quite considerably since the plan was adopted.

The LDP is based on more up to date evidence and is more consistent with the latest national planning policies.

The majority of the sites allocated for housing within the UDP have been developed. Those that remain are either unattractive to the market or have physical constraints which means that they are not financially viable to develop. This means that the Council would not be able to demonstrate a sufficient onward supply of housing sites if it relied solely on the UDP and this would inhibit the delivery of affordable housing.

The LDP affordable housing policy requires developments of 10 or more dwellings to include a percentage of on-site affordable housing. However, the requirement to provide on-site affordable housing only applies to developments of 25 or more dwellings in the UDP.

Given that most of the housing sites within the UDP have been developed or cannot be delivered, the LDP provides certainty in terms of a range of sites which have been deemed ‘sustainable’ and suitable for residential development. Just as importantly, the LDP identifies extensive areas of land that are not suitable for development and should be protected.

Reliance on the very outdated UDP which does not provide for an ongoing supply of housing sites creates significant risk of speculative housing developments which would be difficult to resist in technical terms and be likely to result in costly appeals.

A significant amount of land identified for the recently announced £160m Investment Zone is allocated for development within the LDP, but lies within open countryside as defined by the UDP. Reliance solely on the UDP would severely inhibit its planning prospects and delivery.

Supplementary Planning Guidance (SPG) ‘hangs off’ an adopted Plan. Whilst it is not possible to update SPGs associated with an unadopted LDP, it is unsafe to hang them off a plan adopted 20 years ago which was produced against a very different policy and evidence context.

“Officers fully respect the Court of Appeal decision and the concerns of some Members about the suitability of LDP2. We are very keen to understand these concerns more fully and to work together to produce a plan which is deemed more palatable. It should be remembered, however, that no plan is perfect and it will not be possible to meet the wishes and demands of all Members when producing a new plan – the merits of which should be judged on a county rather than a ward basis.

“Plan production is a technical, resource intensive and time consuming process. It is estimated that the production of a new Local Plan could take four to five years before it is ready for adoption, assuming Member sign-off can be achieved at the various stages along the way.

‘Sound’

Mr Fitzsimon concluded: “As I understand it, only certain elements of the LDP are a cause of concern. However, in order to be deemed ‘sound’, a development plan must be subject to extensive consultation and scrutiny. It also must be read and implemented ‘in the round’ – not least because its policies which determine housing and employment levels and allocations are inextricably linked. For these reasons, it is not possible to simply ‘pick and choose’ certain policies of LDP2 and create a ‘cut and paste LDP2.5’ until LDP3 is produced.

“On this basis, it seems to me that other than adoption, there are just two realistic options available before a new LDP is produced. The first is to seek a direction from the Welsh Ministers to withdraw LDP2 and rely on the UDP, with all the risks identified above. The second is to retain LDP2 for use as a material consideration in the determination of planning applications. If it is to be the latter, it will be important for everyone to recognise, understand and respect the fact that Officers and Members may choose to attach different weight to certain policies and allocations of the LDP and allow the democratic process to take its course when determining planning applications.

“I hope this note provides some clarity in terms of the current position and I also hope that it is received in the constructive manner it is intended.”

‘Premature’

Cllr Jones told Nation.Cymru: “My optimism about turning a corner with the LDP appeared premature.

“The Chief Planning Officer seems to be defying the courts, councillors and even the First Minister with his assertion that the LDP isn’t dead after all.

“I’ve asked whether he had legal advice before issuing this statement and he says the Chief Monitoring Officer Linda Roberts ‘checked it’. The same Linda Roberts erroneously told us we had to vote or face a threat of jail.”