Written evidence submitted by the Canal & River Trust [FPS 048]
1.1 The Canal & River Trust (“the Trust”) is the charity who owns and manages 2000 miles of canals, navigable rivers, docks and reservoirs across England and Wales.
1.2 The Trust interfaces with the planning system on a number of fronts in our capacity as developer/applicant, statutory consultee, landowner and statutory undertaker and we are keen to see a planning system that actively encourages sustainable, beautiful and safe development whilst delivering a simpler more consistent and streamlined system.
1.3 Our network is the third largest heritage estate in the country and over 40% is designated for its wildlife and nature conservation value. As developer and joint venture partner we have delivered over 13000 residential units since 2009 and have a track record of securing consent from Local Planning Authorities (“LPA”s) on over 99% of applications submitted. We are a statutory consultee for planning applications and a prescribed consultee for NSIPS as well as working closely with HS2 Ltd. In addition, we are a statutory undertaker, reservoir owner, water resource manager (including land drainage and flood risk management) and our infrastructure also hosts critical national infrastructure belonging to other operators.
1.4 The Trust and its assets provide accessible and free to access ‘blue health’ on the doorsteps of millions. Our network has provided a vital form of open space and access to nature during the COVID-19 lockdown of Spring/Summer 2020. These benefits have most strongly been felt by those without private garden spaces and where there is an urban green space deficit
1.5 The Trust has, for many years, championed the creation of safe, sustainable and beautiful waterway places. Our joint venture development at Brentford Lock, built by Waterside Places (‘Homebuilder of the Year’ in 2018 at the Sunday Times British Homes Awards) was awarded a prestigious National RIBA Award (2019).
1.6 We seek to safeguard the integrity and resilience of our network and promote beauty and active travel through our statutory consultee role. Our approach is to seek early engagement, offering realistic, robust and viable solutions. This approach results in us raising objections to only 2.5% of consultations received.
1.7 In addition to our role as a navigation authority the Trust also has statutory duties in relation to waterway environment and heritage and can offer our support to LPAs considering these and other waterway related issues such as flooding.
1.8 We believe that with our breadth of involvement in the planning system we can make a positive contribution to the ongoing conversation about reform of the planning system and how to implement these reforms efficiently and effectively.
1.9 We welcome this opportunity to submit evidence to the Select Committee on the future of the planning system in England and would be happy to provide more detail on any of the points raised.
2 Summary of Response – Key Points
2.1 Q1 Is the current planning system working as it should do? What changes might need to be made? Are the Government’s proposals the right approach?
2.2 Q3. How can the planning system ensure that buildings are beautiful and fit for purpose?
2.3 Q6. How can the planning system ensure adequate and reasonable protection for areas and buildings of environmental, historical, and architectural importance?
3.1 Q1 Is the current planning system working as it should do? What changes might need to be made? Are the Government’s proposals the right approach?
3.1.1 The Trust has provided a detailed response to the White Paper Planning for the Future Consultation which we would be happy to share with you. We recognise that the planning system requires reform and believe that simplifying and streamlining the system can be achieved whilst delivering the Government’s wider policy ambitions. The Trust is already working with Historic England and MHCLG to develop the first ever Listed Building Consent Order aimed at streamlining the consent regime and would be keen to explore further streamlining of measures to support the efficient delivery of waterway infrastructure and supporting facilities.
Statutory Consultee Status
3.1.2 The new planning system should ensure that the Trust is automatically consulted on matters “likely to affect” our waterways in both the local plan and development management process, including new routes to consent proposed in the White Paper..
3.1.3 Our waterways contain many engineered structures such as embankments and cuttings along with hidden features such as culverts and tunnels, often dating from when the canals were built over 200 years ago. These features have an inherent fragility and the extent to which development adjacent to or over them may affect their stability can reach far beyond any narrow waterway corridor. With 96% of land adjacent to our waterways being outside of our ownership ensuring that development adjacent to our network is appropriately located and controlled is important to limit the potential for failure of our infrastructure and the associated consequences of this.
3.1.4 The need for the Trust’s advice in establishing the principle of development in proximity to our waterways has already been established through our role as a statutory consultee for planning applications, permission in principle on brownfield registers, the production of Local Development Orders and as a prescribed consultee on Nationally Significant Infrastructure Projects.
3.1.5 With the White Paper proposal that the local plan process will provide a new route to planning consent we believe that being a specific consultation body (statutory consultee) in respect of Local Plans is also necessary to aid robust decision making. Issues such as flooding, heritage, land stability and wider ground conditions are all highly relevant to our network and can go to the heart of whether a development is acceptable in principle or to the quantum of development that can be delivered. See Appendix 1 for example.
3.1.6 The lack of a statutory role for the Trust in the recently introduced changes to permitted development rights (in respect of upward extensions and demolition and replacement building) is of particular concern to us. Our involvement as a statutory consultee is necessary to limit the potential for catastrophic infrastructure failure which could result in loss of life and damage to critical national infrastructure, local businesses and homes. Associated with this is the need for land stability matters to be the subject of prior approval with associated consultation with the Trust where likely to affect our waterways in any new permitted development rights that are introduced.
3.1.7 We note that detailed consent for proposed growth areas could also be granted by Local Development Order (LDO). The Trust is currently a statutory consultee on the production of LDOs and would ask that this is retained in any new system.
3.1.8 We have attached in Appendix 2 an example to show the importance of consulting the Trust on planning matters. We would be happy to provide more detailed information and expand upon this matter and the risks associated with the Trust not being a consultee if required.
Proposed Land Categories:
3.1.9 The proposal to categorise all land into three categories risks unnecessarily constraining opportunities for regeneration and is too simplistic, with the potential to create tension between land categories. Further refinement and an additional category of development should perhaps be considered to cover development in areas such as canal corridors that may be sensitive to change but where development in not by exception but can be appropriate where sensitively planned and delivered to provide enhancement of an area.
3.1.10 Policies for PROTECTED areas should recognise that in some locations appropriately mitigated development is acceptable and may be highly beneficial and it is not therefore appropriate for development in such areas to be solely by exception which could be to prevent the delivery of sustainable development.
3.1.11 We estimate, based on existing heritage and environmental designations, that over 90% of our network would fall within the designations identified within the White Paper as proposed to be included in the category of ‘areas to be protected’. The existing designations however differ in terms of their purpose and the extent to which they are a constraint upon development. The environmental and heritage value of our network can often be successfully integrated into high quality, sustainable development to unlock the multi-functional benefits of our network for existing and new communities and we would not wish to see such opportunities unnecessarily prevented. To illustrate this, Appendix 3 shows examples of the locations of developments that could fall into the proposed “growth” category where the Trust’s waterways are integral to or adjoin the scheme.
3.1.12 Consideration could be given to the creation of a further category to cover areas that are sensitive to change but where development is not so restricted (or ‘by exception’) - where development can be appropriate where sensitively planned and delivered. In such a scenario, the routes to consent would require greater evidence to demonstrate that the principle of development is acceptable and greater scrutiny of the details so that the areas are enhanced as a result of the development.
3.1.13 With GROWTH areas providing a new route to planning consent then greater consultation and engagement about the acceptability of the principle of development during the Local Plan process is required. We have already highlighted the need for the Trust to become a specific consultation body in the Local Plan process.
Proposed 30-month timescale for Local Plan production
3.1.14 We recognise the importance of having up-to-date plans in place. However, whilst reducing the time taken to produce a local plan may help to achieve this, this should not be at the expense of plans being appropriately informed by relevant and up to date evidence and meaningful engagement with stakeholders.
3.1.15 There are many reasons why, once commenced, a Local Plan may take longer to complete than originally anticipated, not least the need for further investigations or studies associated with proposed development areas to establish the principle of their development. This could be particularly relevant where sites require detailed land stability, contamination or flooding issues to be addressed.
3.1.16 This also highlights the importance of effective early engagement with key stakeholders and statutory consultees to avoid such matters coming to light later in the process. The current proposal affords only limited opportunities to engage with the plan preparation process, stage 1, following a “call for” suggestions and stage 3 when the plan is to be simultaneously publicised and submitted for examination.
3.1.17 Further meaningful engagement must be built into the process to enable proposals to be fully informed and considered. Without this, there is a real risk of longer examinations or inappropriate sites being brought forward for development. As a minimum, there should be the opportunity to inform and comment on plan proposals prior to submission.
Transition to new process
3.1.19 It is proposed in the White Paper that there should be a statutory duty for local authorities to adopt a new Local Plan by a specified date (either 30 months or 42 months from the legislation being brought into force, depending upon current position). We would highlight that such an approach could have significant resource implications for those engaged with the planning system at the national level including developers, statutory consultees, stakeholders and the Planning Inspectorate should a significant number of Local Plans simultaneously reach key stages of engagement. A more phased introduction could be appropriate.
Proposed changes to the examination process
3.1.20 Whilst inspectors being able to simply state agreement with the whole or parts of the council’s Statement of Reasons, and/or comments submitted by the public may speed delivery of inspectors’ reports, such an approach fundamentally impacts on the transparency of the system and could unintentionally risk an increase in the number of legal challenges delaying the implementation of plans.
3.1.21 Removing the examination stage altogether is not acceptable. This is the only recourse to independent consideration of matters raised during the consultation process and its removal would fail to provide sufficient scrutiny around whether plans meet the necessary legal and policy tests and undermine public confidence in the planning system. It is also possible that this could inadvertently lead to an increase in challenges through Judicial Review.
Role of NPPF
3.1.22 NPPF becoming the primary source of policies for development management could bring efficiencies and consistency when responding to consultations on local plans and planning applications or preparing planning applications. This should not however prevent LPAs from being able to apply polices to address locally specific issues where necessary. With the increasing focus on NPPF policies, meaningful consultation and scrutiny on NPPF will be important in ensuring that the system proposed is considered credible by all stakeholders. The Trust would wish to be involved with reviewing sections of the NPPF that are relevant to the protection and enhancement of our waterways.
3.1.23 As an applicant and developer the Trust would stress that whilst speed is important this should not be at the expense of good decision making. The right outcome is more important than speed and we would rather wait for a short period of time to get a positive outcome than have “time targets” driving the decision-making process which could result in the unnecessary refusal of applications. The ability for the LPA and applicants to agree extensions of time should therefore remain.
3.1.24 As a statutory consultee on planning applications we are required to report annually to MHCLG on our performance in responding to consultations and, in recent years, have consistently exceeded the government’s target of responding to between 80-95% of consultations within 21 days and/or an agreed extension period. In the period 2019-2020, 97% of consultations met this target with 86% responded to within 21 days, and just 11% within an extension agreed by the LPA. Where an extension was agreed, the average length was just over a week. It is important in any new process that statutory consultees are provided with the necessary information and the time for relevant specialists to consider and provide meaningful advice to LPAs. Shorter timescales will be counter-productive if relevant advice cannot be offered within that time.
3.1.25 The Trust often recommends the use of planning conditions to address issues associated with development adjacent to our waterways. If a national list of planning conditions is to be produced, it is important that LPAs are not constrained by this list and are also given the flexibility and encouraged to use appropriate, alternatively worded conditions where necessary to address site-specific issues.
Greater use of technology
3.1.26 Investment in new technology in planning departments is welcomed, and in particular the validation of applications being integrated with the submission of the application. This should however fully consider the requirements of any front end for use by third parties including statutory consultees.
3.1.27 Whilst supportive of proposals to standardise key information requirements for planning applications we do not consider that the size (and by association) content of documents to be submitted should be constrained by an arbitrary number of pages, but rather be proportionate to the issues being addressed.
3.1.28 The application of a machine-readable/automated approach to the issues most relevant to the Trust as a statutory consultee is not considered appropriate as site-specific technical information and judgement is frequently required to determine the nature of an issue and the appropriate response.
3.1.29 We have in the past considered the case for technical standards for the issues relevant to us as a statutory consultee but this has not been felt appropriate and instead our notifiable area for consultations is tightly defined to enable us to provide specific, considered responses to those developments of most relevance to us. Whilst we believe that there could be some benefit in standards that identify the issues that developers and decision makers need to consider when developing within our statutory consultee notified area we do not believe that it would be appropriate or feasible to establish technical standards that prescribe exactly how issues should be addressed.
3.1.30 Any planning reform should ensure that there is an appropriate mechanism in place to ensure that development is accompanied by an appropriate investment in infrastructure to both support and mitigate its impact on an area in a timely manner.
3.1.31 Planning decisions can have a significant impact on our waterway network: we have secured more than £5million in recent years to mitigate the impact of development on our assets, largely through the use of planning obligations secured by legal agreement.
3.1.32 The current system of planning obligations enables development which might otherwise be unacceptable to go ahead by securing legally binding mitigation including off-site mitigation, to address site-specific issues including for example noise attenuation and biodiversity measures necessary to facilitate development. If the current system of planning obligations is to be removed, then a streamlined alternative mechanism that focuses on securing agreed mitigation is needed. Appendix 4 provides an example of off-site mitigation at Waterloo Wharf.
3.1.33 The suggestion that IL is payable on occupation gives rise to serious concerns where mitigation is necessary to make the development acceptable ahead of development being undertaken. This could, for example, include significant works to reservoirs and embankments to address flood risk, land stability etc. Reliance on LPAs borrowing funds to deliver such infrastructure raises uncertainty around delivery, particularly where the mitigation required relates to third party assets, such as improvements to canal embankments.
3.1.34 If, as proposed, there are to be fewer restrictions on how local authorities spend the IL, we would suggest that this is accompanied by a requirement that measures to prioritise spending on necessary infrastructure in appropriate locations to mitigate the impact of development in the first instance. It is often the case that the provision, or enhancement of green and blue infrastructure is seen as a low priority. The recent pandemic has however highlighted the importance of such areas to the health and wellbeing of communities and the impact that a shortage of access to such areas can have. We would therefore wish to highlight and see included in core infrastructure requirements the provision and enhancement of accessible green and blue infrastructure. Statutory Consultee status in respect of Local Plans would enable us to effectively engage with LPAs in the identification of such infrastructure requirements for an area.
3.1.35 In our capacity as statutory consultee, landowner and developer operating at a national level we are aware of the significant differences in development value across the country. In any proposal to introduce a consolidated IL geographic imbalances should be addressed to avoid any potential under provision of infrastructure across the country which could restrict investment and growth in an area. It would also be important to ensure that regeneration of sites that require substantial remediation is not prevented because of the infrastructure levy.
3.1.36 Many forms of permitted development are unlikely to result in a significant increase in development or land value. In any proposal to introduce an infrastructure levy, we would suggest that it would not be appropriate to levy a charge for uses of a non-commercial nature, including operational uses of statutory undertakers. In addition, it would be important to consider the impact that such a proposal could have on the reuse of vacant buildings, i.e. it could be a disincentive to the reuse of vacant buildings, particularly vacant historic buildings requiring investment to be brought back into use.
3.2 Q2. In seeking to build 300,000 homes a year, is the greatest obstacle the planning system or the subsequent build-out of properties with permission?
The Trust has no comment to make on this specific issue.
3.3 Q3. How can the planning system ensure that buildings are beautiful and fit for purpose?
3.3.1 With the majority of land along our waterways in third party ownership our network is vulnerable to, but also able to benefit from, the quality of adjacent development which we endeavour to influence where consulted on third party developments as a statutory consultee. We therefore welcome aspirations to drive up design standards and provide greater certainty to all stakeholders about the quality of design that is expected.
3.3.2 Good design and beauty are a fundamental part of our efforts to maximise the benefits of the Trust’s waterways and we know that the benefits people derive from green and blue spaces are highly dependent on people’s feelings of safety and the quality of the environment around them.
3.3.3 The Trust’s e-planning toolkit sets out key design principles for new waterside development and we are in the process of preparing a “Creating Great Waterway Places” document, building upon the National Design Guide to provide guidance on how to optimise and integrate waterways within developments to deliver significant economic, social and environmental outcomes. We believe that this could easily be adapted to act as a pathfinder for the Government to support the building beautiful agenda.
3.3.4 Where our advice is taken on board, the result can be a significant improvement in the quality of place and the attractiveness of the waterway as a resource for the community. There are examples of this in developments at Kings Cross and the Queen Elizabeth Olympic Park. There are however also many examples of poorly integrated development an example of which is provided in Appendix 5.
3.3.5 Early engagement and meaningful pre-application consultation with Local Planning Authorities and statutory consultees can make a real difference and we believe this should be made mandatory for certain categories of development in England, with appropriate nationally fixed fees.
Production and Use of Design Guides and Codes
3.3.6 Design codes should be developed at an appropriate scale and their production be appropriately resourced and benefit from stakeholder engagement.
3.3.7 A National Model Design Code is likely to be more valuable as a template for how local authorities can develop their own codes than as a means of setting a series of national expectations for how development will be undertaken. An overly prescriptive approach in a national design code may lead to design that is unsympathetic to local context and stifles innovation.
3.3.8 Key stakeholders, including the Trust, should be given the opportunity to influence the production of national design codes to ensure that the documents respond appropriately to, for example, waterway-related issues.
3.3.9 In terms of local design codes, the focus should be on achieving appropriate, high-quality design codes where they are most beneficial rather than seeking complete coverage of the authority area if this would undermine quality. Design guides that largely follow the approach in the National Design Guide of identifying the elements of good design and how they should be considered but do not prescribe the design response are likely to be appropriate more widely.
3.3.10 As well as showing that design codes have been produced with ‘effective inputs from the local community’ it should also be necessary to show that other relevant stakeholders such as the Trust have been involved. We also suggest that there may need to be some means of resolving disputes about whether local design guides and codes are appropriate and meet the expectations of the national guidance documents.
3.3.11 Reforms propose updating the NPPF to ‘make it clear that schemes which comply with local design guides and codes have a positive advantage and greater certainty about their prospects of swift approval’. However, this should not undermine the ability of decision makers to refuse schemes that may be of a high-quality design but are inappropriate or unsustainable in other regards, especially where there is a risk to safety, e.g. risk of flooding or significant land instability and insufficient mitigation is proposed.
Masterplans and site-specific codes for Growth Areas
3.3.12 If the proposed permission in principle for Growth areas is carried forward, then we recognise the benefits of requiring masterplans and design codes as conditions of this. As ‘growth’ areas may cover land owned by a number of different parties, any requirement for a site-specific design code should apply to the whole area covered by the ‘growth’ area rather than each individual site, as appears to be suggested by the White Paper.
Wider permitted development to enable popular and replicable forms of development
3.3.13 Whilst there may be instances where ‘popular and replicable forms of development’ and ‘pattern books’ may be appropriate, we do not support the use of national permitted development rights to do so. It is difficult to see how such an approach can be consistent with the Government’s National Design Guide, which stresses the need for development to respond to context and character and to effectively plan for how the development will relate to public spaces, nature and routes of movement. It is also difficult to see how the use of national permitted development rights would be consistent with other sections of the White Paper, which stress the need for community input.
3.3.14 The granting of detailed consent for renewal areas by LDO or Neighbourhood Development Order (NDO) would be a better approach than using permitted development rights to support ‘popular and replicable forms of development’. It would allow local authorities to work with stakeholders to identify the types of development most appropriate for their areas and to identify areas where it would be appropriate to apply the new rights and use pattern books and where it would not.
3.3.15 Whilst permitted development rights based on the appearance of buildings is not considered to be the most appropriate route to deliver a ‘fast-track to beauty’, if this course is pursued than any new route to planning consent should include appropriate protections for the Trust’s assets: specifically that land stability is one of the planning considerations that must gain prior approval from the LPA and the Trust consulted where development is in an area that would affect its infrastructure, including its reservoirs.
Modern Methods of Construction
3.3.16 Modern methods of construction such as modular homes can bring benefits however, their use should be a choice made after a proper design process has been followed (such as that advocated by the National Design Guide). We would suggest that the success of developments that include modern methods of construction will be as much influenced by factors such as the orientation of units, their relationship with surrounding areas of public realm and the quality of landscaping, as the appropriateness of the appearance of the units themselves.
A new body to support design coding and building better places
3.3.17 We would be happy to work with any new body proposed to help drive up design standards. Our team includes highly experienced architects and landscape architects who have in the past sat on expert panels for bodies such as CABE
3.4 Q4. What approach should be used to determine the housing need and requirement of a local authority?
3.4.1 No comment.
3.5 Q5. What is the best approach to ensure public engagement in the planning system? What role should modern technology and data play in this?
3.5.1 No comment.
3.6 Q6. How can the planning system ensure adequate and reasonable protection for areas and buildings of environmental, historical, and architectural importance?
3.6.1 We estimate that over 90% of our network would fall within the designations identified within the White Paper as proposed to be included in the category of ‘areas to be protected”. We believe however that the planning system should not only seek to protect but also enhance these important elements.
3.6.2 Existing designations on our network rightly vary in terms of their purpose and the extent to which they are a constraint upon development. Our historic and environmentally important network can often be enhanced by high quality, sustainable development which unlocks the multi-functional benefits of our network for communities. We would not therefore want to see a scenario where they are subject to policies that could be overly restrictive to proposals along their corridors that support use and enhancement. (We have commented further on this matter under Q1)
3.6.3 We believe that our role as statutory consultee in the planning process is key to protecting and realising the potential of our waterways. We are also able to offer our support to LPAs in their consideration of these and other waterway related issues such as flooding and land stability, helping to ease the burden on them and deliver better value for public money as well as potentially speeding up the planning process.
3.6.4 Whilst the Trust proactively engages with local plan making there is currently no statutory obligation for LPAs to consult us. We are therefore keen for our current statutory consultee role in development management to be mirrored in the plan making process and the new routes to consent as previously advised.
3.6.5 Early meaningful engagement with key stakeholders such as the Trust is key to ensure that appropriate consideration is given to areas and buildings of environmental, historical, and architectural importance. This is equally important in both the planning application process, where we have previously suggested (under Q3) mandatory pre-application discussions, and in the Local Plan Process where we are seeking statutory consultee status for the Trust as a specific consultation body and greater engagement in the proposed new Local Plan process.
3.6.6 In addition the Trust would reiterate its serious concerns over aspects of the extension of permitted development rights, particularly with regard to the removal of statutory consultation with the Trust and the need to address land stability through the prior approval process. These factors put our historic and environmentally sensitive network at potential risk from inappropriate development. We have provided comments on this matter in Q1 but would be happy to provide further information on this point to the committee.
3.7 Q7. What changes, if any, are needed to the green belt?
3.7.1 No comment.
3.8 Q8. What progress has been made since the Committee’s 2018 report on capturing land value and how might the proposals improve outcomes? What further steps might also be needed?
3.8.1 No comment.
*** Appendices follow ***
Proposed Local Plan Allocation
Proposed Local Plan allocation for 170 dwellings in Derbyshire.
Site falls within a reservoir inundation zone at risk in the event of rapid flooding from a reservoir dam breach
A disused canal tunnel runs under the site.
Both issues could significantly affect the amount of developable land within the site allocation.
Advice from the Trust is essential to inform future development of this site.
Stoke Towpath Collapse
Planning application for 36 apartments
Immediately adjacent to the canal towpath.
On-site excavation works caused the towpath to collapse and the canal had to be urgently dewatered to reduce the risk of a canal breach occurring.
The Trust had not been consulted by the LPA and had not had the opportunity to request planning conditions to minimise the risk of development creating land instability
Examples of recent, present, and future developments in England that would fall in the “growth” category where the Trust’s waterways are considered integral to or adjoin, the scheme.
Case Study: Waterloo Wharf, Uxbridge