As some of you will be aware there is an increasing risk to our rivers from hydropower developments, whether those are large scale (river barrages as has been muted for the lower Severn, Ribble, Mersey and so on) or local small scale, using Archimedes Screw type turbine to generate the power, as is proposed on the River Goyt in Stockport, Cheshire.

It’s clear to me, that this risk is only going to grow as the UK and the Government strive to meet what is predicted to be a looming energy crisis and energy security over the next 20 years or so. And that’s without adding climate change, from wherever that change comes from, to the mix and the green energy aspect of it.

Therefore what the following will not centre around the ‘green merits’ or not, of any scheme, as that not its intention! Its intention is to provide information to people who want to practically challenge such planning applications when they are put forward.

Without giving a long and detailed explanation of how the planning system works, which there are many textbooks on, I’ll start with the planning process from when a planning application is submitted to the local Planning Authority (PA) by a hydropower developer for such a scheme.

Legal responsibility of the Planning Authority :

The PA must notify in writing all Statutory Consultees (the list of who these are can be sourced on the Net, but would include Emergency services the EA, the Landowner etc.) Local, near residents, who may be affect by the development must be notified. The wider public have only to be informed by Statutory notices around the site and an announcement in the local Newspaper. The notices must give brief details of the application, what it is, who the developer is (name), the contact address of the PA, so people can contact them for further information and to support or object to the proposal and a final time date for such support/objections to be received.

By law the final time date must state a minimum of 21 days notification to all interested parties, but in reality, it’s much longer that this for an application to be heard by the Planning committee (PC). The average time for an application to be heard by the PC is 10-13 weeks. What the Planning Officer(s) (POs) dealing with the case will always tell you is, to have your support/objections in within that 21 days period.

This is done for their expedient reasons only, so they can write their final report for the PC. What few will tell you is, you have the right to submit a letter of support/objection right up until the PC sits down to hear the application. And have it considered by the PC.

POs and PCs don’t like it when such things happen and are dropped on them at the last minute, but nevertheless is allowable under the rules.

The PO in charge of the case must tell you the time and date of when the application will be heard by the PC. It’s best to aim to have your support/objection in 5 working days before the Planning Hearing. Under the law anyone from anywhere has a right to support/object to a proposal and equal weight of consideration given to it. Whether equal weight is always given to each, is a debatable point, it has to be said!

Objections :

An objection must take in what are called ‘Material Conditions.’ Material conditions relate to issues permitted or not by planning law and the local Unitary Development Plan.

Note, it’s proposed and will become a reality, that all PAs move to a planning process called local Development Framework (LDF) by 2011. And all PAs have been working on LDF for the last few years, The aim of which along with many others is to speed up the planning process, make it less confrontational, more consensual by wider use of consultation with local people, giving those people more say/involvement in the process and on the developments in their areas.
Whether this will prove to be the case when LDF replaces the present UDP process, only time will tell!

However, until we move to LDF we are still working to the UDP process and that is what people objecting need to look to.

UDPs for people who have little experience of using them can appear a weighty complex document, but all follow a similar set format, in that they have an overview of the authority’s planning strategy and development. Detailed sections on

Housing,
Transport,
Shopping/retail,
Environment,
Arts/Culture/Leisure/Entertainment/Tourism.

Each of these sections will have several numbered polices attached to them on what type of permitted development can take place. It will have a section of maps colour and number coded for each area (Ward/District) of the planning authority. They may make reference on the maps back to the policy statement re the above sections, or they may not.

For an objection to have the maximum impact and meet the ‘material conditions’ as mentioned above, it need to point out where the development fails to meet the stated policy. Better still, if you can show where it doesn’t meet several of them.

For objections to hydropower plants the most important section would be the section on the Environment, but it might well impinge on the cultural side through destroying some protected industrial archaeology.

So in your objection you would state, “It is my belief that this development contravenes policy AB, AC, AD, AE, The Environment. And FA, FB, FC, Culture." It’s helpful to give a short summary of the reasons why you believe this to be the case.

Attendance at a Planning Committee Hearing :

All planning hearings are open to the public to attend, but in general you have no automatic right to address the committee. However, you can make a request to be heard by them, and such requests are normally granted. The time restraint on how long your address is, is kept very tight, to no more than 2 minutes. Where an application is a contentious one, with many groups objecting to it, the committee may only allow 1 speaker from all the objecting groups.

Given the time restraint placed on an objector’s address, you need to be very clinical and succinct with it. The address needs to be well thought out and rehearsed before the hearing, because like the objector(s) the developer will have the same privilege afforded to them and they always taking that opportunity, and generally, are quite slick with it.

Appeals :

Objectors do not have the right to appeal against a planning decision that goes against them. On the other hand, the developer does, and that is made to the Secretary of State and normally dealt on his/her behalf by the Planning Inspectorate.

Objectors can on the very narrow point of law, apply to the courts for a Judicial Review of the process of the planning decision. For it to be successful, you need to show that the planning authority fail to carry out some part of the process correctly. The outcome, even when successful, will most likely only get the hearing rerun at best.

Call-ins and Public Inquiries :

The Sec of State has the right to can call in a planning decision by any planning committee. It’s a right that’s used very infrequently, but does happen, usually for large-scale contentious developments – Airports, major road building, large industrial/retail parks and so on.

If a call-in happens, it can be dealt with in two ways, a Local Inquiry, held and chaired by an independent Planning Inspector, or full-blown Public Inquiry.

Local Inquires are usually dealt with in the main, by written evidence and possible in-person submissions to the Inspector. The Inspector then make a determination based on the evidence presented to him by both parties and recommends that decision to the Sec of State. The Sec of State then either accepts or rejects that determination.

Public Inquiries are costly in time and money, therefore, as has been pointed, ordered infrequently by the Sec of State. However, when used, the evidence for and against a development can be examined in great detail. And usually is! The developer will usually have a battery of lawyers lined up on his side, where as the objectors at best will have none, and/or a friendly Solicitor or Barrister giving advice on a part-time, Pro Bono basis.

When all the evidence has been presented to the Inquiry, the Planning Inspector then analyses it and makes a decision on what has been presented to him, writes his report and submits it to the Sec of State for him to make a final decision on. The Sec of State is free to accept or reject his decision. Rarely does Sec of State go against the Inspector’s decision, and I know of only one case where this has happened.

It’s worth noting, that you, as an objector, does have the right to lobby the Sec of State to call in a planning application and request he hold an inquiry into it, whether that be a Local or Public Inquiry. The more people that send lobbying letters to the Sec of State, the more impact it can have on him/her calling it in.

To summarise the above :

1. Research the UDP for where the development is in conflict with stated policies in it.
2. Where conflicts of the UDP are found, state them clearly in your objections to the Planning Authority.
3. Submit your objection in time for it to be considered by the Planning Committee.
4. Ask for the right to speak at a Planning hearing.
5. Explore all your legal options at all stages of the planning process.
6. Consider lobbying the Sec of State to call-in a planning application.

Miscellaneous Information and Advice :

Once a planning application has been granted, you have very little chance of getting it overturned. So always lodge an objection to applications you have concerns about within the time period.

You can place as many objections as you like, so if you feel you have not covered an area, or new evidence has come to light, submit another objection.

Planning applications and plans are now published by all Planning Authorities on-line in their Planning Portal. Go to the Planning section of the Council’s site and follow the links.

Most, if not all, Councils now allow you to support or object to an application via a comment link attached to the application.

All libraries within the PA area should have hardcopies of the UDP.

You have the right to equal treatment from the Planning Authority and no request for information should ever be refused by them. If a request is refused it’s worth invoking the Freedom of Information Act to gain it. However, that can take 28 Working day to arrive.

Useful organisation that can give free advice on Planning Matters :

Planning Aid :

http://www.planningaid.rtpi.org.uk/

Campaign for the Protection of Rural England :

Home | Campaign to Protect Rural England

Legal Pro Bono advice :
The Bar Pro Bono Unit: Free Legal Advice and Representation

Phil Hackett March 2010