We have witnessed the rapid growth in recent years in the number and size of warehouse/distribution parks and logistics hubs. Many factors are driving this rapid increase, not least the move towards online retail and the expansion of goods handlers as well as companies seeking larger stock warehouses focused on primary transport hubs to ensure effective and efficient access to and supply of products and raw materials.
This article seeks to look at some of the key planning considerations when seeking relevant consents for large scale warehousing schemes and logistics handling facilities.
Which option to choose?
Developers will inevitably look to pursue large developments of this type centred on key transport hubs that can minimise travel distances, utilise primary routes and ensure the quickest and most cost-effective movement of goods. In some circumstances this has led to the use of Development Consent Orders (DCOs) under the Planning Act 2008 rather than seeking a planning permission under the Town and Country Planning Act 1990.
DCOs may have certain benefits over planning applications that are determined by the local planning authority (LPA) which are more likely to be susceptible to political influence and local objection. DCOs, however, are used for Nationally Significant Infrastructure Projects (NSIPs) and there must be a purpose in the proposal which qualifies as a NSIP, going beyond the creation of warehouse/distribution facilities, that would allow such proposals to be considered under this process.
Recent years have seen an increase in the promotion, for example, of rail freight interchanges, with several being granted DCOs and several more in the pipeline. The fundamental aspect of these proposals that bring them within the scope of the DCO regime is the modal shift from road to rail freight. The associated warehousing is linked to that transport infrastructure that qualifies as a NSIP. In a planning system which prioritises sustainable development, reducing the carbon impacts by taking vehicles off road is a key driver in trying to utilise rail freight transportation.
Confirmation of DCOs is the subject of independent examination by professional examiners appointed by the Secretary of State. Although local people and relevant local authorities affected will have the right to participate in that process, the decision making is taken out of the hands of the LPA and therefore should be less politicised than with the planning application process. Whilst the DCO process is substantial and costly, in some cases the DCO route may be preferable to the conventional planning application process.
Development plan policies
In circumstances where a DCO cannot be used, then planning permission will, of course, be required for warehousing and distribution parks and logistics hubs.
Where large-scale schemes are proposed, as is often the case with these forms of development, they are normally expected to be promoted through the LPA’s Local Plan. That would involve seeking to identify the site as suitable and appropriate in the location for the intended purpose and persuading the LPA, through the various stages of the preparation of a local plan, to allocate the site for the intended purpose in the final adopted version. If the proposed site is allocated within an adopted local plan, then the presumption, of course, is that development will be permitted in accordance with that plan.
Whilst it would be normal to promote large scale schemes through the Local Plan, applications do come forward on a speculative basis. Without planning policy support in an adopted plan, the starting point would normally be that these developments would not be acceptable, unless material considerations indicate otherwise. Other material factors including ecology, transport and highways, biodiversity impacts etc which would need to be satisfactorily addressed through evidence. However, we have seen examples of such speculative development being approved by LPAs and on appeal where, for example, there is a clear demonstrable need for the development that may outweigh the absence of any planning policy support.
Legal challenges
Even in circumstances where planning permission is granted, the risk of third-party legal challenges still remain to the granting of planning permission through judicial review. Whilst this risk is likely to be less in circumstances where the principle of development has been established through an allocation in the Local Plan, there are various ways in which the validity of any permission may be challenged. It should be stressed that a DCO may also be the subject of a legal challenge.
The focus of any challenge is not on the merits of a project, but the decision-making process and legality of that. For that reason, it is critical that for contentious applications – or those subject to local interest or scrutiny – care is taken at each stage of the decision-making process to ensure that the grant of permission (whether from the LPA or through the DCO process) is robust.
Howes Percival’s specialist planning law team has continued to work with promoters and developers across the region and beyond to help secure consents for their development projects, and work with the consultant teams to ensure that the planning process is legally sound. Th is includes routinely reviewing draft planning applications and the LPA’s decision-making process, including scrutiny of planning conditions to ensure these are not only robust, but ensure proper delivery of a scheme. Th rough those actions, even if a permission is legally challenged, we have the confidence that ultimately permissions would be upheld.
More widely, alongside our planning expertise, Howes Percival has specialist:
- property lawyers who assist landowners and promoters with the promotion of land for warehousing and distribution purposes; developers in connection with the delivery of those schemes; and also operators seeking to lease or purchase such buildings
- employment and regulatory lawyers who can advise on particular personnel issues facing the logistics sector, including drafting of employment contracts, dealing with working hours queries, disciplinary procedures, grievances, licence compliance, and other matters
- commercial lawyers who can advise on the terms of distribution agreements, terms and conditions for supply and purchase, long-term outsourcing agreements etc.
If we can help you with any of the issues raised in this article, email paul.hunt@howespercival.com or jay.mehta@howespercival.com, or visit www.howespercival.com
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