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Improving the use and discharge of planning conditions (DCLG 2010)

Submission from ALGAO:England/Planning & Legislation Committee

ALGAO is the national body representing local government archaeology services at County, District, Metropolitan, Unitary and National Park authority level. These provide advice to nearly all the District, Unitary and other local government bodies in the country. ALGAO: England co-ordinates the views of its member authorities (106 in total) and presents them to government and to other national organisations. It also acts as an advisor to the Local Government Association (LGA) on archaeological matters. The range of interests of our members embraces all aspects of the historic environment, including archaeology, buildings and the historic landscape.

The historic environment is vulnerable to change, once destroyed archaeological evidence is lost for ever. Mitigation strategies can be developed for historic assets that are under threat, the broad approach is set out in PPG15: Planning and the Historic Environment (1994); and PPG 16: Planning and Archaeology (1990) – which are to be updated in PPS 15 and its supporting Guidance. Where preservation in situ cannot be achieved, recording of archaeology by excavation or building analysis is possible. The historic environment can make a positive contribution to planning for new development and new communities, and promoting a sense of place, but needs to be assessed and integrated into the planning process from the start of the decision-making process. We are concerned that the results of investigations are adequately analysed and published; and disseminated as widely as possible. Securing the deposition of project archives enables people to re-investigate the results; and supports museum and other displays.

Pre-application stage measures
We support these points, in particular (PPG 16) ensuring a pre-application or pre-determination desk-based assessment and field evaluation may either demonstrate the extent of archaeology on a site, and therefore the extent of the applicant’s need to mitigate the impact of their development on that archaeology to be secured by condition; or possibly demonstrate that archaeology need not be an issue in the determination of the planning application, and no condition necessary.

Consultation questions on part 2

CO11 Because of the multi-stage nature of heritage asset investigations, both on-site excavation or recording and off-site analysis and publication of the results, we recognise that for the purposes of clarity (for the applicant and LPA) several, or one staged, planning conditions would appear more reasonable than the single condition previously recommended in PPG 16 para. 30. This particularly refers to a `written scheme of investigation’ without setting out its scope (which is described elsewhere in the text of the PPG).

The consultation drafts of PPS15 and its supporting Guidance provide greater clarity on these stages, to which condition discharge can be tied. We have therefore advocated two conditions to be structured to cover the stages of historic asset investigation, particularly to allow discharge of a pre-commencement condition once site recording works have been completed to enable development to commence. This is set out in detail in our response to the Planning Inspectorate consultation on Model Conditions (copy attached).

CO23.2 We welcome the recognition that a form of `condition precedent’ may be needed to secure archaeological investigation prior to construction works commencing, however we believe allowing for two, or in some cases more, conditions should allow that condition to be discharged once those direct operations are complete. A second condition to secure the subsequent off-site analysis, publication and archive deposition, defined by a post-investigation assessment of the results could then secure the completion of the project. This should enable the site to be occupied or put in use, as required by CO24.

Consultation questions on part 3

Measure (2) Structuring decision notices

4 Do you agree we should commend the use of structured decision notices along the lines recommended above?
Yes, we believe that structured conditions would make it clear that there are stages to the archaeological investigation, of both below ground and built historic assets, and the concomitant reporting of the results, that take place both before, sometimes during, and after construction works. However these could be expressed in a single, staged condition, or a number of conditions grouped as you suggest in condition notices.

5 If yes, what would be your preferred method of implementation?
5(a) Encourage LPAs to structure their decision notices as good practice.

6 To which kinds of applications should this apply?
Historic asset investigations, as these require:
a) investigations before, and sometimes during, building works;
b) assessment of the results, which can take place after building works have commenced;
c) the appropriate publication and dissemination of the results, with deposition of the archive for future research. For larger investigations this may not be achieved before use of the site can commence.

Measure (3)

7: This would appear a reasonable measure. In most cases archaeological and historic building issues should have already been established with the applicant, particularly if pre-application discussions have taken place.

However, Question 9, the short timescale between an applicant being pre-notified of the conditions and the decision date, does not allow for meaningful engagement to question or challenge those conditions, particularly if they have been imposed at the instigation of a third party through the consultation process, to whom any objections would have to be referred.

9 (b): The purpose of this pre-notification needs to be thought through. It certainly seems reasonable in terms of giving the applicant fair notice of obligations to be placed on them. However the right to `appeal’ or question the conditions pre-determination raises issues, particularly when a challenge to a condition imposed at the request of a consultee will need to be fed back to them and a response received.

10: The consultees should certainly be notified of the draft decision notice. They should be given the opportunity to comment if their advice has been mis-interpreted, and especially to ensure any recommended condition wording is fit for the purpose they intended, and reasonable.

Measure (6)

21: Our members, as often being third parties, have some concerns that all correspondence they may have entered into with the LPA will necessarily have made it onto file and therefore be available to the Inspector. It can be frustrating at one remove if local authority departmental procedures are not followed or fail. In some cases LPAs impose conditions following some standard internal procedure without consulting their consultee advisor, and impose conditions in circumstances where the consultee would not advise one. We would therefore like to see some measures whereby an Inspector can consult a third party consultee where the Inspector has reason to believe the reasons for the imposition of a condition are unclear.

Measure (7)

23 & 24: Yes, we believe that the LPA, and the appropriate consultees, should be notified at least one week, preferably two, before site works commence. In fact, this is often set out as a requirement where written schemes of investigation have been secured by condition for archaeological mitigation works.

Measure (8)

25 - 27: Yes we would endorse display of decision notices and conditions at development sites. We have been surprised by how many construction companies start work on site before they have read the planning conditions placed on their client’s consent. This measure should apply to major applications as a minimum. Display of decision notices would provide certainty to the local community, and consideration should be given to how best to notify them through local authority communication channels.

Measure (9)

28 – 30: Where LPAs are advised by third party consultees, as is commonly the case for archaeological advice [set out in PPG16 and the consultation draft guidance on PPS15], they should have at least 8 weeks in which to seek advice from their consultee, before discharging a condition. Such a condition should not be discharged until the LPA can demonstrate that they consulted their relevant advisor, and allowed a reasonable time for a response.

Robert Whytehead Convenor
ALGAO Planning and Legislation Committee
March 2010

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