The Director of Planning & Building Control and the Planning Manager (Development Management) presented the undernoted report to the Committee:
“1.0 Purpose of Report or Summary of Main Issues
1.1 This report relates to two separate reviews of the NI planning system, or aspects of it.
· Firstly, publication of the Northern Ireland Audit Office’s report on its review of the wider NI planning system; and
· Secondly, the Department for Infrastructure’s report on its review of the implementation of the Planning Act (Northern Ireland) 2011.
1.2 The main purpose of this report is to summarise the findings of these two reports. It provides an officer analysis of the issues raised and sets out next steps for dealing with the issues identified by the two reports. The report also takes opportunity to set out some of the current significant impacts that issues raised by the reports, alongside other factors, are having on the Council’s operation of its Planning Service.
2.1 The Planning Committee is asked to note this report.
3.1 The current NI planning system has been operating for nearly seven following local government reform and the transfer of most planning powers to the 11 newly formed councils in April 2015. As mentioned in the summary, two separate reviews of the NI planning system, or aspects of it, have been carried out over the last 12 months. These reviews have resulted in the recent publication of two separate reports. The Department for Infrastructure (DfI) published its report on 27 January 2022 and the Northern Ireland Audit Office (NIAO) published its on 01 February 2022. These reviews are particularly timely given the criticisms levelled at the NI planning system that it is not delivering and is having an adverse impact on growth and investment.
3.2 The main purpose of this report is to summarise the findings of these two reports. It provides an officer analysis of the issues raised and sets out next steps for dealing with the issues identified by the two reports. The report also takes opportunity to set out some of the current significant impacts that issues raised by the reports, alongside other factors, are having on the Council’s operation of its Planning Service.
4.0 NIAO Review of the NI Planning System
4.1 Belfast City Council has been engaging with NIAO on its review of the NI planning system since first learning of the audit in 2020. The Planning Service initially met with NIAO in December 2020 then provided written feedback to NIAO in January 2021, also responding to an information request to all councils. NIAO shared its draft report with the 11 councils in December 2021 to which Belfast City Council provided comments. NIAO then published its final report on 01 February 2022. A copy of the full report is provided at Appendix 1a. For ease of reference, the report’s recommendations are listed at Appendix 1b.
Report’s Key findings and recommendations
4.2 The overarching message of the NIAO report is that the NI planning system is not working efficiently and, in many aspects, is failing to deliver for the economy, communities or the environment. The report’s key findings are summarised below.
· The planning system has not met many of its main performance targets
· The system is increasingly financially unsustainable
· The system is inefficient and often hampered by poor quality applications
· There is an urgent need for improved joined-up working between organisations delivering the planning system
· Many statutory consultees are struggling to provide information in a timely manner
· The system isn’t meeting its plan-making objectives.
4.3 The report goes onto make a series of recommendations as set out at Appendix 1b. These recommendations relate to Plan-making, improving performance on the most important applications, enforcement, delegation and committee matters, review of planning fees, leadership of the planning system, skills and environmental ammonia levels.
4.4 The NIAO report is especially critical of the disjointed approach to planning in NI:
‘Our review has identified significant silo working within the planning system. We saw a number of instances where individual bodies – councils, the Department or statutory consultees – have prioritised their own role, budgets or resources, rather than the successful delivery of the planning service. Each organisation is accountable for its own performance, and whilst the Department monitors the performance of individual organisations against statutory targets, there is little accountability for the overall performance of the planning system.’ (par. 4.10)
Officer commentary on the NIAO report
4.5 Officers view the NIAO Report as excellent opportunity to highlight the shortcomings of the NI planning process, whether it relates to Plan-making, Development Management or the general administration of the planning process. In this regard, the report is welcomed.
4.6 In terms of the NIAO Report’s recommendations, these are generally supported. Although the recommendations can perhaps be criticised for being too high level, not time bound and that there is no indication as to how those recommendations should be implemented. In some regards, the report does not go far enough and in previous feedback the Planning Service has called for an independent review of the NI planning system.
4.7 Despite the overall negative tone of the NIAO Report, Belfast City Council fairs reasonably well overall. Major planning application performance is strong in the context of the other councils (although clearly there is room for improvement); this is despite the Council dealing with around twice as many Major development projects as the next most prolific council. The Council enjoys healthy levels of delegation (96%) and low levels of officer recommendations overturned by the Committee (2% compared to 31% for the highest council). The NIAO Report also makes specific mention of the Council’s Application Checklist, published in 2018 to improve the quality of planning applications on submission, with the Department encouraging other councils to follow suit.
4.8 The NIAO recognises significant issues with the introduction and administration of the new Local Development Plan processes set out in the Planning Act 2011. The NIAO Report notes that the Department’s unrealistic expectation was that all councils would have a fully adopted two-part LPD within 3.5 years of transfer contrasting this with the reality that after seven years no council has even an adopted first part Plan Strategy – with Belfast being at the most advanced stage. According to the latest projections, not all council areas will have an adopted plan until 2028 – some 13 years into new system when the life-cycle of a Plan is expected to be 15 years. The changes within the 2011 Act were intended to ensure NI has a plan-led system and it is imperative that all council areas have up to date plans to provide certainty, consistency and provide the foundation for investment. In emphasising the unrealistic expectations for the LDP processes the NIAO Report also recognise the underestimate for this part of the system from both a skills and resources perspective.
4.9 Officers advise that the NI planning system is structurally flawed. Whilst the objective of local government reform was to enable councils to make local planning decisions, the reality is that in a significant number of cases, this is not possible because local decisions cannot be made without input from central government departments through the statutory consultee process. Unlike planning authorities in England and Wales, councils do not have key areas of responsibility such as transport and regeneration. In addition, unlike in other areas of GB, advice on all Listed Building and archaeological matters comes from central government.
4.10 Councils are therefore largely dependent on central government to make decisions and there are substantial problems with the statutory consultee process in terms of poorly resourced consultees with often very slow response times, causing significant delays and uncertainty to the planning application process. In addition, statutory consultees are culturally desperate from councils with a lack of alignment in terms of overall objectives and service priorities. In these regards, the NIAO report accurately captures the ‘silo working’ and lack of overall accountability of the NI planning system.
4.11 If Belfast is to truly maximise its potential for place-making and effectively compete with other regional cities in GB and ROI, it must have unitary authority status with additional core responsibilities enjoyed by other major cities.
4.12 The NIAO report rightly places emphasis on improving planning application performance but officers disagree with the focus being on the most important application. Each and every application is important to the customer and City to one degree or another, and there must be emphasis on improving the application system as a whole.
4.13 The NIAO Report recommends greater transparency around Committee decision making in NI, particularly the recording of why some normally delegated applications are referred to Committee and minuting the reason/s why the Committee has overturned an officer recommendation. These are matters that the Council already addresses.
4.14 NIAO also recommends that the Committee regularly reviews a sample of its previous decisions to enable understanding real-world outcomes, impacts and the quality of completed projects. This recommendation is welcomed and offers propose to build this into the Committee’s continuous development programme. Other recommendations include the need for appropriate Member training with the Department ensuring regional consistency.
4.15 The NIAO report rightly highlights the financial unsustainability of the present system. In January 2021, the Council reported to NIAO that the net cost of its Planning Service is nearly £1.2m after fee income. Planning is far from cost neutral. NIAO’s recommendation that the NI planning system works towards financial sustainability is therefore welcomed.
4.16 It is understood that the Council remains the only planning service in NI to currently charge for PAD advice, which it has done since 2017. This has helped to fund additional staff to provide a better Planning Service overall. The Department is currently scoping a review of regional PAD guidance, including potentially encouraging more widespread charging.
4.17 The NIAO Report remarks that there is a lack of accountability for the NI planning system. Whilst DFI has overall oversight of planning, there is no one taking overall responsibility. This is particularly challenging given how fragmented the system is with different central government Departments playing key roles alongside councils. Whilst the Department has an important leadership role, given the range of significant stakeholders in the system, it cannot have sole autonomy in addressing the substantial issues raised by the NIAO Report. Officers are very clear that the solutions can only be found by the various stakeholders working together with a common goal of significant improvement.
5.0 DfI Review of implementation of the Planning Act (Northern Ireland) 2011
5.1 Section 228 of the Planning Act (Northern Ireland) 2011 (‘the Act’) requires DfI to undertake a review of the implementation of the Act. Members may recall that the Planning Committee considered its response to DfI’s ‘call for evidence’ in respect of this review in March 2021. A copy of the Council’s response is provided at Appendix 2. Further engagement with local government included a ‘workshop’ DfI to the Heads of Planning of the 11 councils in June 2021. DfI recently published its report on the review on 27 January 2022. A copy of this report is provided at Appendix 3a. For ease of reference, the report’s recommendations are listed at Appendix 3b.
Scope of the Review
5.2 In its report, DfI confirms that it has not undertaken a ‘root and branch’ review of the Act given that seven years in from transfer of most planning powers to councils, it is still ‘relatively early days’ in the delivery of the new planning system. The Department’s focus is on whether the original objectives of the Act have been met. They confirm that this will inform whether it is necessary to retain, amend or repeal any provisions of the Act.
5.3 The original objectives of the Act were:
· the continued formulation and co-ordination of planning policy by the Department;
· councils preparing local development plans;
· councils determining the majority of planning applications for development and additional planning related consents; and
· councils taking appropriate enforcement action where a breach of planning control may have taken place.
‘Call for evidence’
5.4 DfI issued an 8-week ‘call for evidence’ in February 2021. It attracted 55 responses. Almost two-thirds of the Act were not remarked on with the vast majority of comments relating to Local Development Plans (LDPs), development management (planning application process) and enforcement.
Report’s Key findings and recommendations
5.5 The regulations require DfI to report on the following:
· the objectives intended to be achieved by the Planning Act
· to assess the extent to which those objectives have been achieved
· to assess whether it is appropriate to retain, amend or repeal any of the provisions of the Planning Act or subordinate.
5.6 The Department’s review found that the vast majority of provisions within the Planning Act have been implemented and that the transfer of responsibility for the majority of planning functions to locally accountable councils has been achieved, together with the establishment of the two-tier planning system.
5.7 DfI notes that councils are preparing local development plans for their areas, have published statements of community involvement and now determine the vast majority of planning applications. Changes to the decision-making process including pre-application community consultation and pre-determination hearings have further enhanced community engagement and have allowed greater public involvement and transparency in the determination of planning applications.
5.8 Councils are also exercising their planning enforcement duties, investigating alleged breaches of planning control and taking action as appropriate. The Department is determining applications for ‘regionally significant development’ under section 26, or applications ‘called-in’ under section 29 of the Planning Act.
5.9 Since the commencement of the Act, the Department has also published the Strategic Planning Policy Statement for Northern Ireland (SPPS) setting out the Department’s regional planning policies in a shorter more focused document and has published extensive guidance by way of Practice Notes on the reformed planning system.
5.10 The review also found that 162 sections of the Act, or just under two-thirds of its provisions had not been remarked upon in the call for evidence and DfI has, therefore, drawn the conclusion that these should largely be retained as structured.
5.11 DFI reports that key issues emerging from the responses to the call for evidence include:
· the timeliness of councils bringing forward their local development plans and delays in processing times for some planning applications, particularly major applications; and
· the need for potential legislative changes which might address perceived obstacles in the system.
5.12 In seeking to address the findings from the review, DfI has made 16 recommendations / actions covering aspects of the Planning Act governing, Plan-making, Development Management, planning enforcement and additional planning control. For ease of reference, these recommendations are provided at Appendix 3b.
Officer commentary on DFI report
5.13 In commenting on whether the objectives of the Act have been met, DFI observes that the vast majority of provisions within the Act have been commenced, resulting in its successful implementation. Officers take issue with the suggestion that the implementation has been ‘successful’. The NIAO Report clearly confirms that the NI planning system is not working efficiently and, in many aspects, is failing to deliver for the economy, communities or the environment. Clearly, there is much further work to do to improve how the planning system operates in terms of the LDP process, Development Management and general administration of the system.
5.14 DFI acknowledges that the ‘…planning system, in some parts, hasn’t achieved the level of performance envisaged.’ It refers to indicative timetables for bringing forward LDPs not being achieved and whilst targets for processing Local applications have been met, targets for Major applications have not. The Department states that there are a number of factors that have contributed to this and that it is seeking to address these, albeit they are largely outside the scope of DFI's review.
5.15 The Department makes 16 recommendations (see Appendix 3b). None of the recommendations are time bound and DFI states that legislative change around these recommendations will have to be brought forward under the next NI Assembly mandate. Officers have concerns about how long it will take to bring about much needed change.
Local Development Plans
5.16 DFI acknowledges the calls for fundamental reform of the LDP process but does not consider that a fundamental review is required until a number of council LDPs have been adopted so as to better understand and evaluate the potential for change. The Department believes that the current process is appropriate and that issues can be addressed through better guidance and reviewing the statutory list of consultees.
5.17 Whilst it was recognised that there would be challenges arising from the introduction of a completely new process for the production of development plans this has been unnecessarily further complicated by the role the Department has adopted. The anticipated supportive and collaborative relationship between the Department, as the body responsible for strategic direction or oversight, and the councils as the new local plan making bodies, has not developed. The Department approach engagement and oversight has resulted in unnecessary delays as their role has become more interventionist than strategic oversight.
5.18 The new system sought to provide the flexibility for councils to respond to their unique challenges and circumstances through the introduction of plans and polices that reflect the aspirations of their Community Plans. However, the experience has not reflected this positive and innovative aspiration with a more controlling and directive position adopted by the Department in relation to both guidance and engagement with councils in the development of their LDPs.
5.19 DfI considers the existing framework of roles and responsibilities within the Development Management process remains appropriate. However, officers fundamentally disagree with this statement for the reasons set out previously, concurring with the NIAO Report’s conclusions that the system is highly disjointed and involves far too much silo working. The long-term objective must be for Belfast to become a unitary authority with wider powers and increased responsibilities.
5.20 Responding to the Department’s recommendations, officers welcome exploration of further digitisation of the planning process, over and above the implementation of the new regional Planning IT system, expected to ‘go live’ late summer 2022. This would follow English and Scottish Governments publication of white papers on promoting innovation and improving digitisation of the Scottish and English planning systems.
5.21 DFI's commitment to bringing forward proposals for both online and in person engagement in the Pre-Application Community Consultation process is also sensible, with temporary regulations having been introduced to facilitate online engagement during the pandemic. This will also consider the emerging recommendations from the regional Planning Engagement Partnership, providing opportunity for improved engagement in the process.
5.22 The commitment to review direction call-in criteria is also welcomed but this should be extended to a fundamental overhaul of the notification process as there are considered to be far too many instances whereby the Council has to refer applications to the Department before it can make a decision, resulting in uncertainty and unnecessary delay.
5.23 Officers welcome the Department’s commitment to bring forward legislation to improve the quality of applications on submission. This would in effect make the Council’s own Application Checklist a statutory document. However, it should be pointed out that the Council first raised the need for legislative change in this area as far back as 2016. It is very disappointing that it has take over five years for a formal decision to be made on this.
5.24 The Department states that it will explore further and give consideration to the legislative requirements around statutory consultations including timeframes for consultation responses, penalties for late responses and how councils can proceed if statutory consultees do not respond within the required timeframes. The issues around consultees goes to the core of some of the major challenges the NI planning system faces. As previously stated, the long-term objective must be for Belfast to have unitary authority status so that it is not reliant on outside bodies to make local decisions. In any case, changes are essential to significantly improve the statutory consultation process now and make the system much more integrated and outcomes orientated. This must include ensuring that statutory consultees are effectively resourced. The Department has recently written to other government departments on foot of the NIAO Report, highlighting the need for significant improvement in these areas.
5.25 The recommendation to make Pre-Determination Hearings discretionary is considered to be very sensible as statutory PDHs are unnecessary and result in much uncertainty and delay for applicants.
5.26 The Department’s recommendation to supplement existing section 59 provisions which would disallow the variation of a development proposal at appeal would be a good step forward. It would prevent appellants making changes (sometimes significant) at the appeal stage when the Council has not had proper opportunity to consider them. Moreover, it should focus applicants on improving the quality of the submissions when made to the Council. However, it is disappointing that DFI has not taken up the Council’s request for legislative change that gives Planning Authorities discretion as to when they accept amended plans or additional information. This proposal was supported by a number of other councils and local government should continue to lobby on this issue, particularly in discussions about how to improve the quality of applications and overall performance.
5.27 In terms of enforcement, the Department’s commitment to exploring use of Fixed Penalty Notices and multiple fees for retrospective applications is welcomed as deterrents to unauthorised activity.
5.28 Lastly, officers welcome the recommendation to undertake a general review of planning fees including an automatic annual inflationary uplift. The NIAO Report stresses the financial unsustainability of the current planning system. It will therefore be necessary to undertake a fundamental review of planning income, including a review of planning application fees, introducing charging for current no-fee applications (such as Discharge of Condition applications, Non Material Changes and PANs), and potentially allowing councils to set their own planning fees.
6.0 Current operational challenges
6.1 The Council’s Planning Service remains under significant operational pressure, brought about by many of the issues that the NIAO Report identifies in particular. The Council currently has around 1,200 live applications, up from around 850 since before COVID-19. This 40% increase in live applications initially resulted from the impacts of the first lockdown between March and June 2020. The office was initially closed and applications could not be received or processed, some staff were furloughed, site visits were temporarily suspended for health and safety reasons which meant that assessments could not be completed, and new IT had to be rolled out to support remote working.
6.2 However, despite having been almost fully being operational since summer 2020, it has proven extremely difficult to reduce live application numbers back down to more manageable, pre-COVID numbers. This has been due to a range of factors including:
· Planning application numbers returning to normal pre-COVID-19 levels fairly quickly after the initial lockdowns. This has meant that whilst a healthy number of decisions are being made, this has been more or less matched by new incoming applications, meaning that it has not been possible to make meaningful inroads into reducing the total live number of planning applications.
· In some areas there has actually been in a rise in applications, most notably an increase in householder applications as people are trying to achieve more space in the light of the pandemic (this is a trend experienced throughout the UK). The Planning Service also continues to receive a high volume of Lawful Development Certificate applications for HMOs under the new HMO licensing requirements.
· A marked deterioration in the quality of service provided by statutory consultees. In many cases there are very slow consultation responses, holding up applications and resulting in significant delays to applications decisions. This is a key issue identified by both the NIAO and DfI reviews.
· Intermittent technical problems with the NI Planning Portal Public Access and back- office software (this was particularly an issue towards the end of 2020 and since January 2022).
6.3 The most significant challenge – which is also outside the control of the Council – is the statutory consultation process. As mentioned, for many applications, the Council is reliant on advice from central government departments before it can make a planning decision. In many cases, there are significant delays in statutory consultees providing consultation responses, often borne of lack of resources. It is understood that DFI Rivers is only operating at 40% staff capacity. There are also staff shortages within DAERA. DfI Roads (the most prevent consultee in terms of the number of consultation requests) continues to provide many of its consultation responses well outside the statutory consultee period.
6.4 Unverified data for Belfast indicates that around only 40% of statutory consultee responses are provided within time for Major development applications. This rises to approximately 65% within time for Local applications with 63% overall for all applications.
6.5 In terms of official data, for NI as a whole, the latest statutory consultee performance for 2021/22 Q2 indicates the following:
· Total number of consultations issued was 7,195 (up 12% over the previous year)
· Only 64% of statutory consultations were received within time (down from 77% the previous year)
· Dfi Roads – 66% consultations within time (77% previous year)
· DAERA – 71% (68%)
· DfI Rivers – 29% (64%)
· NIW – 97% (88%)
· DfC/HED – 61% (76%)
6.6 In some cases, it has taken consultees many months to provide a substantive consultation response. These delays preclude officers from identifying and resolving issues with applicants much earlier in the process, and prevent officers making a decision or referring applications to the Committee.
6.7 Belfast City Council has called for more sophisticated reporting on statutory consultee performance by the Department including measurement of how long it is taking on average for specific consultees to respond and reporting by District Council area.
6.8 Members will also be aware of the recent and widespread objections to applications by NIW, also a statutory consultee. Officers are continuing to work with NIW to try to resolve the wider strategic issues around these objections, but as it stands approximately 100 applications (about 10% of all applications) are stalled in the system because of this issue.
6.9 There are also some internal challenges with around 110 applications awaiting a consultation response from Environmental Health (the Council is planning to procure temporary external consultancy support to reduce the backlog of consultations and assist with consultations on new applications).
6.10 The impacts of these operational challenges are:
· Higher case numbers for individual case officers – this makes managing caseloads much more difficult, with a resulting negative impact on performance, less scope for feedback to customers and significant additional pressure on staff.
· Poor performance overall with slower decision making (current performance for the year to December is average 38.2 weeks to determine Major applications against a target of 30 weeks; and average 16.8 weeks for Local applications against a target of 15 weeks. These statutory targets are not themselves especially stringent).
· Significant reduced customer satisfaction with frequent frustration about the length of time to process planning applications.
· Delays to, and potential withdrawal of, investment in the city.
· Belfast is seen as a less attractive place to invest and do business.
7.0 Next Steps
7.1 This is a pivotal time for the NI planning system and publication of the NIAO and DfI reports represents a significant opportunity for much needed change and improvement. It is also essential that the right decisions are taken now – both locally and regionally – to address the fundamental shortcomings that have been identified.
7.2 Officers advise of the following next steps.
i A Public Accounts Committee at the NI Assembly on ‘Planning in NI' is scheduled for 10 and 17 February 2022 on foot of the NIAO report. A small number of local government Chief Executives have been invited to give evidence and BCC has nominated itself to be part of this group.
ii Mobilisation of the 11 councils as a cohesive unit through the Heads of Planning group to ensure a strong, united local government voice, with potential support from the Northern Ireland Local Government Association (NILGA).
iii Formation of a cross sector group tasked with identifying solutions and addressing the fundamental issues identified by the reviews. It is essential that the core sectors of central and local government, development industry, elected members and communities are fairly and equally represented. There should also be an independent ‘outside voice’ on this group to widen experience and scope for improvement. The Department and local government should have co-ownership of implementing the necessary changes.
iv Engagement with the RTPI and IPI professional bodies
7.3 The aforementioned steps are regionally focused. At a local level, the Council’s Planning Service will continue to bring forward the following actions.
· Ongoing development and implementation of the Continuous Improvement Plan;
· Implementation of the new regional Planning IT system in late summer 2022 (to replace the current NI Planning Portal and bring forward significant digital enhancements and improved working practices); and
· Redesign of Development Management processes using lean systems principles to significantly improve the efficiency and quality of service.
8.0 Financial & Resource Implications
8.1 The existing NI planning system is inefficient and underperforming and this inevitably means that it also costly and not value for money. The NIAO report rightly highlights the financial unsustainability of the present system. In January 2021, the Council reported to NIAO that the net cost of its Planning Service is nearly £1.2m after fee income. Planning is far from cost neutral. NIAO’s recommendation that the NI planning system works towards financial sustainability is therefore welcomed.
9.0 Equality or Good Relations Implications / Rural Needs Assessment
9.1 No adverse impacts identified.”
A Member thanked the Planning Department for their hard work in respect of their consideration of the review.
The Committee noted the contents of the report.