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The field next to Adisham railway station is one of the areas of farmland that would be used for housing in the Draft Local Plan. William Turrell 20 October 2022

CPA "Examination in Public" webinar - a summary

Chris Katkowski is a planning specialist and a King's Counsel (or KC, the new term for a QC since the change of monarch). He has represented parties on both sides at planning inquiries, and recently advised the government on reforms to planning policy.

The Community Planning Alliance asked him to take part in a webinar to help people attending an Examination in Public. You can watch it in full below:

The following is only a short summary of a 90 minute discussion; we recommend you listen to Mr Katkowski's full remarks in the video, look at the text of the government planning policies (and their guidance for those attending a local plan examination for the first time) and also the resources on the CPA website.

What happens before the EiP?

First, there's a minimum of two rounds of consultation on a local plan.

Then the full council votes to submit the plan to the secretary of state to be examined.

Who takes part in the Examination in Public?

If you have made a representation on the draft plan, you're entitled to be heard by the examining inspector(s).

The inspector will read a vast amount of written material, including the representations for and against parts of it. They will hold sessions and give people entitled to be there a chance to say what they wish to say and discuss the plan.

What's it like being at an EiP?

They can last several weeks. It's not meant to feel like being in court.

The presiding inspector (usually there's just one) leads a roundtable discussion. The inspector will have a written agenda for the topics of the sessions. They might ask the local authority to say a few words to set out their position, then the inspector will open up the discussion to the rest of the room, in a structured way.

People indicate if they want to speak. You don't get long, maybe a few minutes, but the inspector may go round the room several times, then go back to the LPA and give them a chance to respond.

Quite often the local authority gives its reply and that provokes various people to want to say something more.

Local Plans aims

  • allocate land, e.g. housing, business retail

  • designate land, e.g. as green belt, protected landscape, protected ecology, some designations can't be designated by local authorities and have to be done nationally, but most can

  • set out planning policies - how developed is managed or controlled. e.g. aspirational statements about what development is meant to achieve - e.g. the look of development, design policies, sustainability, climate change, as well as what Mr. Katkowski termed the more "nitty-gritty" aspects of developments.

National Planning Policy (NPPF)

Mr. Katkowski drew attention to paragraph 11 (see 5:30 on the video)

11. Plans and decisions should apply a presumption in favour of sustainable development.

For plan-making this means that:

(a) all plans should promote a sustainable pattern of development that seeks to: meet the development needs of their area; align growth and infrastructure; improve the environment; mitigate climate change (including by making effective use of land in urban areas) and adapt to its effects;

(b) strategic policies should, as a minimum, provide for objectively assessed needs for housing and other uses, as well as any needs that cannot be met within neighbouring areas 6 , unless:

(i) the application of policies in this Framework that protect areas or assets of particular importance provides a strong reason for restricting the overall scale, type or distribution of development in the plan area 7 ; or

(ii) any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole.

He said that of the two caveats (i & ii), it's the first that more often comes up in discussion - i.e. a protective designation that should stand in the way of meeting development needs.

The inspector's tasks

Does the plan meet legal requirements? (e.g. sustainability appraisal, strategic environmental assessment - inspector checks if that process has been carried out as specified in the legal requirements).

Has the plan making authority "co-operated" with neighbouring authorities (e.g. a neighbouring authority might want another to take on part of their housing need).


(see 17 minute mark on video) The plan has to be "sound" to be adopted. The law doesn't specify what a "sound" plan is, it's left to national policy - NPPF paragraph 35:

Examining plans

35. Local plans and spatial development strategies are examined to assess whether they have been prepared in accordance with legal and procedural requirements, and whether they are sound. Plans are ‘sound’ if they are:

(a) Positively prepared – providing a strategy which, as a minimum, seeks to meet the area’s objectively assessed needs 21 ; and is informed by agreements with other authorities, so that unmet need from neighbouring areas is accommodated where it is practical to do so and is consistent with achieving sustainable development;

(b) Justified – an appropriate strategy, taking into account the reasonable alternatives, and based on proportionate evidence;

(c) Effective – deliverable over the plan period, and based on effective joint working on cross-boundary strategic matters that have been dealt with rather than deferred, as evidenced by the statement of common ground; and

(d) Consistent with national policy – enabling the delivery of sustainable development in accordance with the policies in this Framework and other statements of national planning policy, where relevant.

The outcome

An inspector has the power to order the planning authority to make modifications - i.e. the plan is deemed deficient as it stands, but it could be made "sound" if it's changed in some way. For example, if a local authority making a plan has catered for X new houses, but the inspector is convinced in order to be "sound" it needs a good deal more, they might specify how many extra houses are needed.

Mr. Katkowski said he wasn't aware of there ever being a plan that has "got through this process and emerged unscathed" - there is always something to be done.

In every case apart from one, the plan is capable of being salvaged. The exception is the "duty to co-operate" (which comes under point (a) - "positively prepared"), which is a pass/fail test at the point the plan is submitted to the Secretary of State. If the plan fails that, it cannot be taken any further forward.

Legally speaking the inspector's report isn't binding, however the local authority can only adopt a plan in accordance with the inspector's recommendations. If it doesn't like what the inspector has said, the only option is to withdraw the plan.

The local authority can make minor modifications of its own - "tidying up" without consulting the inspector (although Mr Katkowski pointed out the inspector will often wish to know).

General advice

Mr Katkowski says it makes sense to focus on the key tests from the NPPF. In his experience, people often people don't do this effectively - they talk around the subject rather than refer to the key tests.

He also mentioned how national government has encouraged the planning inspectorate to get plans through the process in some shape or form - i.e. to discourage inspectors them from saying a plan is so hopeless it should be stopped in its tracks. Therefore inspectors generally come to the EiP with a "positive" mindset - they'd rather fix a plan than abandon it.

On housing, he said the reality in the current climate is inspectors are unlikely to find a plan is providing for too much housing, they're more likely to find it is under providing or it's just about right.

Mr Katkowski stressed that the inspector would be looking for a plan that represents "an" appropriate strategy, it doesn't have to be the best strategy, or the most appropriate strategy. To put it another way, someone might have a strategy that's "better", but as long as the LPA's strategy can be described as "appropriate", it meets the test.

Appeal process?

If there's anything in the inspector's conclusions that shows the inspector hasn't really understood the tests of soundness, there exists the equivalent of a judicial review in court - you can seek permission for a hearing.

Mr Katkowski said that in his experience it's extremely rare to find an inspector who isn't aware of what they're meant to be doing. He said the vast majority of inspectors are very well versed in ensuring it's an inclusive process (i.e. that everyone is able to have their say.)

The Planning Inspectorate also has its own internal quality control standards.

Planning Practice Guidance

PPG underpins and fleshes out the NPPF.

One point Mr Katkowski drew attention to was how you can't criticise overall national policy, and that the inspector is habitually going to "seek the sanctuary" of following the national methodology.

Asked (see 50 minute mark on video) what sort of "exceptional circumstances" are likely to succeed in allowing a reduced housing figure, he said they need to be local, and you need to demonstrate the "standard methodology" (the formula used to calculate the number of homes needed in a particular area) has come up with some sort of "quirk" that's either unique to the local authority or is shared by few other LPAs.

Soundness of individual sites

(see 1:01:40) Mr Katkowski was asked if the soundness criteria could be applied to individual sites, not just the overall plan. He said it definitely could, and that the judgement call of whether a plan is sound is made at both a micro and macro level. Using the example of of an allocation being a long way from public transport or facilities, you'd look at item 35 (d) "consistent with national policy" - and argue it isn't sound according to the requirements in that.

Mr Katkowski spoke for nearly 90 minutes, so do watch the video if you want to hear about many more topics.