STATUS IN WALES 00 08 Wales...HBN –00-08: Estatecode Welsh edition 2008 Title WHE Estatecode 2009...

For queries on the status of this document contact [email protected] or telephone 029 2090 4118

Status Note amended Sept 2016

HEALTH BUILDING NOTE 00-08:

Estatecode 2009

Wales edition

STATUS IN WALES

APPLIES

This document replaced HBN –00-08: Estatecode

Welsh edition 2008

Core elementsHealth Building Note 00-08:Estatecode

W E L S H H E A LT H E S TAT E SYSTADAU I ECHYD CYMRU

Welsh edition 2009

Core elementsHealth Building Note 00-08: Estatecode

Welsh edition 2009

Core elementsHealth Building Note 00-08: Estatecode

Welsh edition 2009

Front cover illustration: Aerial sketch perspective ofYsbyty Ystrad Fawr, Ystrad Mynach, courtesy of Aneurin Bevan Health Board/BAM Construction Ltd/Nightingale Associates.

Published by Welsh Health Estates.

Welsh Health Estates acknowledges the input of theDepartment of Health.

This publication can be accessed from the UK HealthOrganisations’ website www.spaceforhealth.nhs.uk.

© Copyright Welsh Health Estates 2009.

Welsh Edition first published 2008.

Welsh Edition revised 2009.

Designed by Keith James.

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Foreword

Using Estatecode, all NHS organisations should be ableto secure efficient and effective property solutionsthrough the use of property resources in order to deliverbetter health and social care.

To obtain best value from property assets, NHSorganisations have to take a proactive role (especially intown planning and sustainability) and carry out theirproperty undertakings to a high standard.

Previous references to land and property appraisal andasset maintenance have been omitted from this editionof Estatecode. It is envisaged that the five-facet surveywill be included in a revised ‘Developing an estatestrategy’ to be read in conjunction with ‘A risk-basedmethodology for establishing and managing backlog’(DH Estates and Facilities Division).

The National Health Service (Wales) Act 2006 (aconsolidating Act) came into force on 1 March 2007.Former statutory references have been retained inbrackets to assist ease of recognition of the new sectionsin this transition period.

This edition contains more detailed advice on capitalinvestment, the business case process and theprocurement of assets than previous versions.

Where further advice is needed please contact WelshHealth Estates on:Intranet: http://howis.wales.nhs.uk/wheInternet: www.wales.nhs.uk/whe

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Core elements: Health Building Note 00-08 – Estatecode Welsh edition

Contents

Foreword

Part A - Overview

Chapter 1 Overview 3Scope and purpose of guidance Structure of the guidanceTarget audience

NHS organisationsIndividuals

The policy context Information and standardsGuidance and powers

Land and property ownership Powers to carry out land and property transactionsIncome generation powers The decision-making process Delegated limits The proper exercise of powers

Key recommendations Acquisitions Disposals Leases

Part B - Strategy

Chapter 2 Town planning and the NHS 11Introduction Legal background

Primary legislation Primary statutory instruments Government planning guidance Other legislation/policy

Summary of the planning process National planningNHS involvement

Local planningNHS involvement

Development controlNHS involvement Exclusions Planning applications

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Supporting documentation Determination of planning applicationsPlanning conditionsPlanning obligations (Section 106 agreements) Planning appealsOther planning control issues

Special interestsConservation areasListed buildingsTrees

EnforcementChapter 3 Planning strategic investment in the estate and the business case process 23

IntroductionGeneral principlesStrategic service plans Techniques and tools

Health impact assessments (HIAs)Estates impact assessments Achieving Excellence Design Evaluation Toolkit (AEDET) EvolutionBREEAM Healthcare

Strategic asset management Estate strategiesThe capital investment and the business case process

Strategic Outline CaseOutline Business CaseFull Business Case

New primary care premises and major refurbishments/improvementsDesign ChampionsArt in health

Part C - Procurement of new facilities and services

Chapter 4 Procurement of new facilities and services 29IntroductionEU rules on procurement

Land and property transactions Public works contracts Public services contracts Procuring works, goods or services – asset maintenance

Private Finance InitiativeDesigned for Life: Building for Wales3rd Party DevelopmentsPost Project Evaluation

Part D - Transactions

Chapter 5 Acquisition of freehold land and property 35IntroductionDelegated limitsPrinciples of acquisition

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The business caseManaging the acquisition team Town planningSite investigation report Services/utilities report Structural surveyValuations Negotiating the purchase

Freehold covenantsConditional contracts Option contracts (option to purchase)

Heads of termsThe solicitor’s roleKey pointsWithdrawal of property from the market Timetable

Post-completionCompulsory purchase powers

Chapter 6 Acquisition of leasehold land and property 41IntroductionDelegated limitsPrinciples of leasing

Operating and financing leases The business caseNegotiating the lease

Lease termRent reviewsBreak clausesUser provisions and other specified user restrictions Alienation provisionsFreedom to make alterations and adaptations Repairing obligations InsuranceVAT liabilityContracting out of the Landlord and Tenant Act 1954

Identity of the tenant ReferencesSigning and sealing the lease Post-completionRenewal of leasesWelsh language

Chapter 7 Disposal of freehold land and property 47IntroductionPrinciples of disposal Priority purchasersFormer owners’ rights (Crichel Down rules) The business caseManaging the disposal team

Routine disposals

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Contents

Major/complex disposals Town planningDecommissioning

AsbestosContamination issues

Overage or clawback provisionsDisposal of partially surplus sites Ransom stripsJoint venture with neighbourSale and leaseback Sale of surplus property in PFI schemes Provision of new facilities in exchange for surplus land and property Forward sale of land and property

When is the sale price assessed?Enhanced planning Sales onRent and other lease terms Giving up possession

Disposals that seek participation in development profit Contracts conditional on planning permission Phased-sale contracts Setting the sale price

Transfer value to another NHS organisation Valuation in preparation of sale of land and property Role of independent valuer (for complex schemes or where proceeds are likely to

exceed £5 million)Sale at best priceSale to a selected purchaser (solus transaction) Sale at concessionary priceSale methods Formal tenderLimited formal tender Informal tenderPrivate treatyLate bidsPublic auction

Post-completionFinancial credentialsSale of surplus historic buildings Simplified disposal process for residential property (tenanted property)

Adjustment to sale priceDisposal of burial grounds and war memorials

Burial groundsWar memorials

Chapter 8 Disposal of leasehold land and property 63Introduction

AssignmentSurrenderSub-letting

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How marketable is the lease?Disposal of long leasehold land and property

Lease termRent level and rent reviews Alienation provisionsUser provisions and specified user restrictions Developmental potential Rights and reservations

Disposal of short leasehold land and property Lease termRent levelRent reviewsAlienation provisionsUser provisions Freedom to carry out alterations and adaptations Rights and reservationsRepairing obligations Existing breachesFuture breaches

Contractual expiry of leasehold interestsVacant possessionRepairing obligations Other breachesEffect of sub-tenancies or licences

Post-completionChapter 9 Granting of leases (and licences) 69

IntroductionNHS organisation as landlord

Code of commercial lease practice Lease termRent levelAlienation provisions VAT implicationsRepairing obligations and insurance arrangements Compliance with statute Landlord’s responsibilitiesFreedom to carry out alterations and adaptations Lease expiry or renewal

Letting concourse shops Insurance arrangements

Joint ventures Car parking areas

Aerial leasesLetting of advertising hoardingsLetting of noticeboards Arrangements with other NHS organisations

Disputes between NHS organisations Arrangements with non-NHS organisations Arrangements for university medical school facilities

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Contents

Arrangements with educational establishments (embedded accommodation)Concessionary leasesPost-completion

Part E - Management of land and property

Chapter 10 Management of land and property 79IntroductionPerformance managementPrinciples of management The costs of holding land and property

Lifecycle costsManaging those costs

Management responsibilities Land and property records Legal title documents and deeds Maintenance

Land and propertyBoundariesUnder PFI contracts

Risk managementSecurity arrangementsPrevention of trespass How to deal with illegal occupationHealth and safety requirementsInsurance arrangements

Sustainable development EasementsCompulsory purchase of NHS property by a local authority Town and village greens

What can be registered as a town or village green? Procedure to register a town or village green Effect of registrationPracticable preventative steps

Town planningManagement of tenancy and other agreements

Minor user rights Donated property and charity issues Use of non-NHS premises for NHS patients

Joint schemes with local authorities Use of NHS land and property by local authorities Management of the historic estate

Legislation and guidance relating to the historic estateThe care and management of the historic estateRepairs noticesThe management of burial grounds and war memorials

Appendix I References 95ActsDirectionsDirectivesOrders

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RegulationsBREDepartment for Business Innovation & Skills (BIS)Department for Communities and Local Government (DCLG) Department for Culture, Media and Sport (DCMS)Department for the Environment, Food and Rural Affairs (DEFRA)Department of Health (DH) Estates and Facilities Division Department of Health (DH)The Joint Working Group on Commercial Leases Ministry of JusticeOffice of Government Commerce (OGC)Royal Institution of Chartered Surveyors (RICS)Welsh Assembly GovernmentWelsh Health EstatesWelsh Risk Pool

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Contents

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Part A – Overview

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1 Overview

Scope and purpose of guidance1.1 Estatecode (Welsh edition) provides best-practice

guidance to NHS organisations in Wales on allaspects of managing their estate.

1.2 It covers a range of issues including legal, financial,regulatory, statutory and administrative.

1.3 Estatecode performs the following key functions:

• informs decisions about buying, selling orleasing of land and property and, in particular,sets out what constitutes mandatory as opposedto discretionary guidance;

• details the requirements for capital planning,the production of business cases and theprocurement of healthcare facilities;

• informs day-to-day management decisions.

Structure of the guidance1.4 Estatecode is structured in five parts:

• Part A – Overview;

• Part B – Strategy. Includes chapters on townplanning, planning strategic investment in theestate and the business case process;

• Part C – Procurement of new facilities andservices. Provides an overview of EU rules onprocurement, together with an explanation ofthe Designed for Life: Building for Walesframework and 3rd party developments;

• Part D – Acquisitions and disposals of freeholdand leasehold land and property;

• Part E – Management of land and property.

Target audienceNHS organisations

1.5 The following organisations should readEstatecode:

• Local Health Boards;

• NHS Trusts;

• Welsh Health Estates;

• The Welsh Assembly Government’s Departmentfor Health and Social Services;

• Any other public body associated with thedelivery of healthcare facilities.

Individuals

Chief executives

1.6 Chief executives are responsible for the estate theirorganisation owns or manages.

1.7 Whilst responsibility is likely to be delegated, chiefexecutives should be aware of the guidancecontained in Estatecode.

1.8 Chief executives should be familiar with Part A(this Part), particularly the section on guidanceand powers (paragraphs 1.24–1.65), and should begenerally aware of the issues that Estatecode covers.

Board members

1.9 Management of the estate is an area that needsdetailed consideration at board level.

1.10 All board members should be familiar with Part A(this Part), particularly the sections on guidanceand powers (paragraphs 1.24–1.65), and should begenerally aware of the issues that Estatecodecovers.

Directors of estates and facilities (and their teams)

1.11 The person responsible for strategic planning andday-to-day operation of healthcare facilities shouldhave a thorough understanding of Estatecode. Thisperson will often (though not always) be a directorof estates/facilities.

1.12 The director of estates and facilities should ensurethat his/her estates and facilities team, as well asany external advisers, are also familiar withEstatecode.

Shared services organisations

1.13 Smaller NHS organisations often use sharedservices organisations to deal with estate matters.Such organisations need to be familiar with thecontents of Estatecode.

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Clinicians and other NHS staff

1.14 Estatecode will give clinicians (and other NHSstaff ) a general appreciation of Welsh AssemblyGovernment policies governing land and propertytransactions.

External advisers

1.15 One of the purposes of Estatecode is to help NHSorganisations identify when support is requiredfrom internal or external professional advisers.Those advisers (property consultants, legaladvisers, auditors etc.) need to be familiar with theprovisions of Estatecode.

Auditors

1.16 Auditors should be familiar with Estatecode inorder to be able to judge whether schemes havebeen carried out in a proper manner.

The policy context1.17 The Welsh Assembly Government’s aim is to

improve the health and well-being of thepopulation through resources available. NHSorganisations have a responsibility to:

• ensure that their land and property is usedeffectively to support Welsh AssemblyGovernment plans and clinical needs;

• provide and maintain an appropriate level ofaffordable healthcare facilities in the rightlocation, which are fit for purpose, support theprovision of quality healthcare and aresustainable over their lifecycle.

1.18 The Welsh Assembly Government is committed toSustainable Development and it is important thatthe impact of new and existing healthcare facilitiesis carefully considered on the basis of economic,social and environmental factors.

When addressing estate matters, it is important forNHS organisations to reduce the environmentalimpact of their operations (both existing and newbuilds/refurbishments).

1.19 The Welsh Assembly Government is keen topromote a move away from traditional adversarialcontracts towards contracts built on longer termcollaborative arrangements, which allow sharedlearning and mutually beneficial relationships toflourish.

Use of the Designed for Life: Building for Walesframework is mandatory for all constructionprocurement projects with estimated outturn costsin excess of £6.0 million.

1.20 NHS organisations must comply with all relevantUK and Welsh statutory requirements, nationaland EU directives.

Information and standards1.21 The Welsh Assembly Government, through Welsh

Health Estates, will ensure that all NHSorganisations have access to information, standardsand guidance on all matters affecting the NHSEstate.

1.22 The majority of guidance will be provided throughthe UK national publications programme and isaccessible from the on-line NHS ‘Space forHealth’ website. Locally produced material will beaccessible from the Welsh Health Estates’ websiteand technical library.

1.23 Estatecode does not cover specialist estates issues,such as fire safety, decontamination andengineering services in any particular detail andNHS organisations should refer to the relevantguidance available on the Space for Health websitefor technical information or contact Welsh HealthEstates.

Guidance and powersLand and property ownership

1.24 NHS organisations may own or lease land in theirown right, however, Local Health Boards (LHBs)need to obtain prior consent from the WelshAssembly Government to do so.

Powers to carry out land and property transactions

1.25 Unlike individuals, NHS organisations do nothave the power to carry out any and all types ofland and property transactions. They can generallyonly carry out transactions that are linked to theirability to carry out their functions.

1.26 NHS trusts and LHBs are statutory creations.Under the law of England and Wales, they onlyhave the powers expressly given to them by orthrough Parliament, or those necessarily implied asa result of what they have to do in order to fulfilltheir functions. These powers are subject todelegated limits, either set out in EstablishmentOrders, Directions, or from time to time by theWelsh Assembly Government (see paragraphs1.41–1.50 on delegated limits).

Local Health Boards

1.27 Local Health Boards are established by the LocalHealth Boards (Establishment) (Wales) Order 2003.

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1.28 LHBs should note the provisions of the NationalHealth Service (Wales) Act 2006 Schedule 2 Para13 which states:

“(1) Subject to sub-paragraph (3), a Local HealthBoard may do anything which appears to it to benecessary or expedient for the purpose of or inconnection with the exercise of its function.

(2) In particular, it may –

(a) acquire and dispose of property;

(b) enter into contracts;

(c) accept gifts of property (including property heldon trust, either for the general or any specificpurposes of the Local Health Board or for anypurposes relating to the health service).

(3) A Local Health Board may not do anythingmentioned in sub-paragraph (2) without theconsent of the Assembly (which may, if the Assemblythinks fit, be given in general terms, covering one ormore descriptions of case).”

NHS trusts

1.29 NHS trusts are established by a statutoryinstrument pursuant to Section 18 of the NationalHealth Service (Wales) Act 2006 (previouslySection 5 of the National Health Service andCommunity Care Act 1990). Their general powersare set out in Schedule 3 paragraph 14 of the 2006Act (previously Schedule 2 paragraph 16 of the1990 Act).

(1) An NHS Trust may do anything which appears toit to be necessary or expedient for the purposes of,or in connection with its functions.

(2) In particular, it may acquire and dispose ofproperty.

1.30 The power is linked to the NHS trust’s functions.

1.31 The functions of NHS trusts are set out in theirEstablishment Orders. The principal function is toprovide goods and services for the purpose ofhealthcare provision.

1.32 NHS trusts may not mortgage or charge any oftheir assets, or use them in any way as security fora loan (Schedule 4 paragraph 3(3) of the NationalHealth Service (Wales) Act 2006 – previouslySchedule 3 paragraph 1 of the National HealthService and Community Care Act 1990).

1.33 NHS trusts have income generation powers (seeparagraphs 1.34–1.37 for details).

Income generation powers

1.34 Schedule 3 paragraph 20(1) of the NationalHealth Service (Wales) Act 2006 (previouslySchedule 2 paragraph 15 of the National HealthService and Community Care Act 1990) givespowers to NHS trusts (from 1 April 2005) toacquire land and property by agreement andmanage and deal with land and property in orderto make money available for improving healthcareservices.

1.35 Income-generation activities must not interferewith the duties and performance of NHSorganisations.

1.36 Land and property may be acquired to enhancedisposal proceeds of surplus land and property (forexample by improved road access, or making a sitelarge enough for a specific use).

1.37 For guidance only see detailed notes providedfrom time to time by the income generationsection of the DH website at www.dh.gov.uk andfor further detail contact NHS Finance within theWelsh Assembly Government’s Department forHealth and Social Services.

The decision-making process

1.38 Subject to delegated limits (see paragraphs1.41–1.50) and the requirement to exercise theirpowers properly (see paragraphs 1.51–1.65), NHSorganisations are responsible for making what theybelieve to be the best decisions concerning landand property for their NHS organisation and theNHS as a whole.

1.39 The decision-making process should be clear,documented and of a high standard in order tosatisfy probity, governance and audit purposes. Itshould be informed by:

• national and local policy requirements for theNHS in Wales;

• strategic service plans;

• estate strategies;

• current property industry practice;

• Estatecode and other guidance, including fromthe Law Society and Royal Institution ofChartered Surveyors (RICS), and Regulations,including Accounting Standards Regulationsand Government Accounting Regulations.

1.40 If NHS organisations have concerns about thedecision-making process they should consult withtheir internal and external auditors and, ifappropriate, financial and legal advisers.

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1 Overview

Delegated limits

1.41 Each NHS organisation is subject to certaindelegated limits. Above these limits, the NHSorganisation is required to obtain the approval ofthe Welsh Assembly Government to the proposedaction.

For advice on delegated limited relating to NHSTrusts, NHS organisations should contact WelshHealth Estates or the Welsh AssemblyGovernment.

For advice on delegated limited relating to LocalHealth Boards, see below.

1.42 The following delegated limits apply to LocalHealth Boards:

Contracts

1.43 Details of the Revised General Consent applicableto Local Health Boards is covered in a letter dated14th September 2009, from the Director General,Health and Social Services; Chief Executive NHSWales to Chief Executives, Local Health Boards.

The letter states that Revised General Consent isgranted by the Welsh Assembly Government forindividual contracts up to the value of £1 millionin each case in any one financial year. All contractsexceeding this delegated limit, all acquisitions anddisposals of land of any limit, and the acceptanceof gifts and property, must receive the writtenapproval of the Welsh Assembly Governmentbefore being entered into.

1.44 The requirement for consent does not apply toany contracts entered into pursuant to a statutorypower, and therefore does not apply to:

• Contracts of employment between LHBs andtheir staff;

• Transfers of land or contracts effected byStatutory Instrument following the creation ofthe LHBs;

• Out of Hours contracts; and

• All NHS contracts, that is where one healthservice body contracts with another healthservice body.

Capital Investment

1.45 Where capital funding is required from the WelshAssembly Government, NHS organisations willneed a business case approved by the WelshAssembly Government.

1.46 Where funding is required for projects greater than£6.0 million NHS organisations will need to

comply with the Strategic Outline, OutlineBusiness and Full Business Case process. Forprojects below this value NHS organisations willneed to agree with the Welsh AssemblyGovernment the most appropriate form ofbusiness case.

1.47 Subject to Contracts above, NHS organisationscan proceed with capital investment projects below£6.0 million provided the appropriate governanceprocesses are in place locally and sufficient capitalis available internally.

Construction Procurement

1.48 All construction procurement projects with anestimated outturn cost of more than £6.0 millionwill be procured through the Designed for Life:Building for Wales framework.

1.49 The method of procurement of constructionprojects below £6.0 million is at the discretion ofthe local NHS organisation. However, wherefunding is provided directly by the WelshAssembly Government, approval is required to theprocurement approach being proposed.

Property transactions

1.50 All acquisitions and disposals of land of any limit,and the acceptance of gifts and property, mustreceive the written approval of the Welsh AssemblyGovernment before being entered into.

Currently, NHS organisations (both Local HealthBoards and NHS Trusts) may retain up to£500,000 from any single disposal after deductionof direct disposal costs. Where a surplus site is soldin more than one lot all sale proceeds from the sitewill be aggregated for the purpose of calculatingthe £500,000 retention sum. However, this matteris under review and advice should be sought fromWelsh Health Estates prior to the commencementof any proposed disposal.

The proper exercise of powers

1.51 In addition to considering what powers an NHSorganisation has, it is essential that those powersare exercised lawfully. There are a number of testswhich any exercise of discretionary power by apublic body must pass in order for it to be aproper exercise of that power. These can besummarised as:

• Is the organisation acting legally?

• Is the organisation acting rationally?

• Is there a proper procedure for the exercise ofthe power, and is it being followed?

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• Does the proposed use of the power amount toan abuse of power?

1.52 Each of these has a specific and sometimes quitetechnical meaning, as follows.

Legality

1.53 In order properly to exercise power, an NHSorganisation must ensure that in so doing, it isacting in accordance with that power and notacting in breach of any other legal obligation.

1.54 However, the obligations may take other forms. Ofparticular importance to the NHS will be theimpact of Directions from the Minister for Healthand Social Services and limits on capitaltransactions. If an NHS organisation carries out aproperty transaction above its delegated limitswithout seeking Welsh Assembly Governmentapproval, it may be acting illegally.

Rationality

1.55 This is a term that caters for two particular typesof legal challenge to a decision by a publicauthority including an NHS organisation. Inextreme cases an NHS organisation may beaccused of acting in an unreasonable way. Moreusually, the NHS organisation is charged withfailing to take certain relevant factors intoconsideration or of having taken account ofirrelevant factors. This may include failure to takeadequate account of the potential risks to theorganisation arising from a transaction.

Procedure

1.56 Where changes in the delivery of services mayaffect patients, there is a legal obligation for theNHS organisation to inform and consult patientseither directly or through representatives.

1.57 The recent case of Smith and North EasternDerbyshire Primary Care Trust has emphasised thewidth of engagement of Section 183 of theNational Health Service (Wales) Act 2006 (publicinvolvement and consultation) (previously Section11 of the Health and Social Care Act 2001).Although the court in the Smith case recognisedthe need for this engagement to be proportionateto the scale of the change, it needs to be real andmeaningful.

1.58 In some cases, consultation with a patient forummay suffice, but in others, a more direct attemptto involve and consult with patients may berequired.

1.59 Land transactions should be properly addressed bythe board, decisions properly authorised, andrelevant paperwork completed.

1.60 Standing orders and financial instructions maylimit arrangements for the agreement andexecution of documents relating to the acquisitionor disposal of capital assets. The former will set out:

• limits of delegated authority from the board;

• expenditure approval processes;

• levels of expenditure requiring tender action;

• decision-making processes;

• delegated authority to sign contracts andagreements, make appointments, agree sales orpurchases of land and property;

• processes for affixing an NHS trust’s, LHB’s orWelsh Ministers’ seal when required.

1.61 Any person signing a contract in respect of a landand property transaction must be authorised to doso, must be fully informed about the transaction,and must have the clear support of professionaladvisers.

1.62 Separation of duties is required to ensure probity:for example, the same person should not sign acontract that he/she has negotiated, nor shouldanyone sign a contract where that person has aninterest in the outcome of the transaction.

Abuse of power

1.63 There are occasions when NHS organisations havemisused their discretionary powers, in particularwhere there is a legitimate expectation from anindividual.

1.64 A leading case relates to Ms Coughlan. She was aresident of Mardon House in Exeter and had beengiven a “home for life” promise by the then healthauthority. The Court of Appeal held that thatpromise gave rise to a public law obligation on thehealth authority and its successors, which couldnot be defeated in the absence of an overridingpublic interest requiring the health authority toclose Mardon House.

1.65 Another area where policy statements may wellgive rise to legitimate expectations is theapplication of the Crichel Down rules (seeparagraphs 7.18–7.24).

Key recommendations1.66 Appropriate legal and professional advice (from

those with knowledge of NHS policy andprocedures) should be obtained for all land and

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1 Overview

property transactions. This should include existingNHS property professionals within Welsh HealthEstates.

1.67 Where NHS organisations own land or propertythat is unregistered, they should register suchinterests at the Land Registry. When coming todeal with such land or property in the future, thismay avoid difficulties that may arise around theenforceability and/or relevance of covenants,easements or other provisions.

1.68 In all land and property transactions, the highestpossible commercial judgements need to bebrought to bear. Any decision-making processshould take account of relevant codes of conduct,accountability and probity. Appointmentprocedures should ensure that all private sectoradvisors are fully acquainted with publicaccountability and probity requirements.

1.69 All land and property transactions should besupported by a robust business case, which shouldinclude a comprehensive (and costed) optionappraisal resulting in a preferred plan of action.Transactions with other NHS organisations, localauthorities and other public sector bodies shouldbe explored before considering transactions withthe private sector.

Acquisitions

1.70 Surplus land and property within the NHS orother central or local government departmentsshould be acquired by NHS organisations beforegoing out to the private sector unless there aregood reasons for the private sector option.Sustainability is becoming a major considerationin the acquisition of freehold and leaseholdproperty (and other types of procurement). Seeparagraphs 10.83–10.89 for details.

Disposals

1.71 NHS organisations should notify otherneighbouring NHS organisations of any propertysurplus to their particular needs to ascertainwhether there is a healthcare need for thepremises. Land and property that is surplus to oneNHS organisation but is required for operationalpurposes by another is not classified as surplus.

1.72 It is intended that a ‘Register of Surplus PublicSector Land’ will be established by the WelshAssembly Government which will incorporate allsurplus NHS land and property.

1.73 Where the selling price of surplus land andproperty is likely to exceed £5 million, in major or

potentially difficult disposals (for example where itis difficult to establish what planning permissionsand, possibly, other consents will be required orprospective uses anticipated), professional adviceand a valuation in addition and independent ofthe selling agent should be secured. Professionaladvice should be obtained through Welsh HealthEstates with valuation being provided by theValuation Office Agency (VOA) or suitablyqualified private sector valuer.

1.74 The disposal of land and property to a selectedpurchaser by private treaty rather than testing onthe open market should not proceed unless priorprofessional advice is given that this is the bestmethod of sale.

Leases

1.75 The property industry introduced a new voluntarycode in 2007: ‘The Code for Leasing BusinessPremises in England and Wales 2007’. All NHSorganisations and their advisers should be familiarwith and encouraged to use this code.

1.76 The code is supported by the UK Governmentand Welsh Assembly Government, which aremonitoring its use and impact.

1.77 Copies are available atwww.leasingbusinesspremises.co.uk.

1.78 The RICS published a voluntary code of practiceon service charges in June 2006: ‘Service Chargesin Commercial Property’. The code, which cameinto effect on 1 April 2007, promotes best practicein terms of service charges for new or renewedcommercial leases. It will also be used to interpretservice charge provisions in existing leases unlessthe lease specifies an alternative approach. NHSorganisations should follow this code of practice.

1.79 The parties to a lease will be encouraged to bemore transparent in dealing with service chargesthrough regular communication between thoseinvolved in the service charge chain in relation tothe provision, relevance, cost and quality ofservices provided.

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Part B – Strategy

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Introduction2.1 This chapter provides an overview of the town and

country planning system at national, regional andlocal levels and its impact on strategic planning forhealthcare, the provision of healthcare facilitiesand the disposal of NHS surplus buildings andland.

2.2 It explains why and how NHS organisationsshould get involved in the development ofplanning policy and the procedures and practicalrequirements involved in making and submittingplanning applications with a view to achieving apositive outcome from the planning process.

2.3 Where planning applications affect the demand forhealthcare services in an area (for example a majorhousing development), NHS organisations shouldconsider making representations to their localplanning authority (LPA) in order to seek financialor other contributions from land owners andprospective developers for additional healthcarefacilities required as a direct consequence of thenew development. NHS involvement in localpolicy development should ensure thatdevelopment plan policies and supplementaryplanning guidance support this approach.

2.4 Planning is a complex process and therequirements for planning applications andappeals have become much more onerous inrecent years. Specialist advice should generally besought from appropriately qualified planningconsultants and care should be taken to ensurethat, in particular, they are Chartered TownPlanners and Members of the Royal TownPlanning Institute (MRTPI).

Legal background2.5 Town and country planning is governed by a range

of legislation and government guidance. Much ofthe legislation is common to both Wales andEngland, but there are important exceptions: forexample, Part 6 of the Planning and CompulsoryPurchase Act 2004 applies only in Wales. Thedivergence between the planning systems in the

two countries has increased in recent years and,with the passing of the Government of Wales Act2006, this divergence is likely to increase furtherin the future.

Primary legislation

2.6 This includes:

• the Town and Country Planning Act 1990 (asamended);

• the Planning and Compulsory Purchase Act2004;

• the Planning (Listed Buildings andConservation Areas) Act 1990;

• the Planning (Hazardous Substances) Act1990;

• the Planning and Compensation Act 1991;

• relevant European legislation, for example, inrelation to environmental impact assessmentand protected species.

2.7 The Planning and Compulsory Purchase Act2004, now largely in force, significantly amendedthe Town and Country Planning Act 1990. Its wasenacted with a view to:

• introducing a different development plansystem;

• increasing the effectiveness and quality ofcommunity involvement in plan making;

• improving the development control process;

• removing the Crown’s immunity fromplanning procedures (with effect from 7 June2006);

• reforming the rules regarding compulsorypurchase and compensation.

2.8 Part 6 of the Act applies solely in Wales. Itrequires: (a) the preparation by the NationalAssembly for Wales of a Wales Spatial Plan, whichmust be kept under review; and (b) thepreparation by LPAs of local development plans.The Act requires that, in preparing the WalesSpatial Plan and the local development plans, the

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2 Town planning and the NHS

plan-making bodies must contribute to theachievement of sustainable development.

Primary statutory instruments

2.9 These include:

• the Town and Country Planning (GeneralPermitted Development) Order 1995 (GPDO)as amended;

• the Town and Country Planning (GeneralDevelopment Procedure) Order 1995 asamended;

• the Town and Country Planning (Use Classes)Order 1987 as amended;

• the Town and Country Planning (LocalDevelopment Plan) (Wales) Regulations 2005;

Government planning guidance

2.10 Welsh Assembly Government planning policy isset out in a series of documents, namely:

• People, Places, Futures: The Wales Spatial Plan(2003);

• Planning Policy Wales (PPW) (March 2002);

• The accompanying series of Technical AdviceNotes (TANs) on a diverse range of topics; and

• Government Circulars issued by the WelshAssembly Government, but including formerWelsh Office Circulars which remain extantand offer important advice on matters such aslisted buildings, archaeology, planningconditions and planning obligations.

These documents are updated periodically: forexample, parts of PPW have been superseded bysubsequent Ministerial Interim Planning PolicyStatements (MIPPs).

Other legislation/policy

2.11 There are many other areas of legislation andpolicy that may affect the planning process,including:

• highways, transportation and otherinfrastructure issues;

• compulsory purchase;

• green travel plans;

• sustainable development and environmentalissues;

• administrative law.

Summary of the planning process2.12 The planning process affecting NHS organisations

may be divided into a number of broad categories:

1. the national planning framework and, whereappropriate, regional and sub-regionalstrategies;

2. the development plan system whereby eachLPA is now required to produce a localdevelopment plan (LDP) for its area; whenadopted, LDPs will supersede existing unitarydevelopment plans (UDP) and the formerstructure plans and local plans;

3. the development control system, whichdetermines whether planning permission isrequired and, if it is, how it should beobtained;

4. special interests, which include the safeguardsand statutory/administrative procedures forprotecting certain trees and woodlands (treepreservation orders), buildings of specialarchitectural or historic interest (listedbuildings), scheduled ancient monuments,areas of special interest (conservation areas andregistered landscapes), and public rights-of-way;

5. enforcement, which ensures that unauthoriseddevelopment is properly controlled;

6. general matters, such as the treatment ofconsecrated land and protection of third partieswhose land may be blighted by potentialdevelopment.

National planning

2.13 As noted above, there is a statutory requirement toprepare a Wales Spatial Plan (WSP). The firstWSP was published in 2003 and will be updatedfrom time to time. The current WSP sets out astrategic framework to guide future developmentand policy interventions. It gives a national spatialperspective and sets out area perspectives for eightsub-regions within Wales. By law, the WSP mustbe taken into account in the preparation of localdevelopment plans. Increasing health expectationsare identified in the WSP as one of the factorsdriving change in Wales and access to health andcare services and reducing health inequalities areidentified as areas where change is required.

2.14 Unlike in England, there is no formal system ofregional planning in Wales. However, the WelshAssembly Government has advised LPAs to workon a collaborative basis to set strategic planningobjectives and policies. For example, in October

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2002, local authorities in North Wales adopted adocument entitled Regional Planning Guidancefor North Wales as supplementary planningguidance and other regional planning groups haveproduced similar documents at various stages.

NHS involvement

2.15 NHS organisations, individually and collectively,should ensure that their interests are reflected at allstages in the preparation, adoption and revision ofnational planning guidance and sub-regionalplanning strategies. Increasing the awareness of thehealthcare agenda will assist in producing positivehealthcare plans at local level. All policydocuments produced by the Welsh AssemblyGovernment are widely consulted on and realisticperiods are allowed for consultees’ responses.

Local planning2.16 Each LPA in Wales must prepare and maintain a

LDP. Most have started and, in general, it is hopedthat adopted plans will be in place by 2010-12.Each LPA must approve a delivery agreement forits LDP and progress in preparing LDPs, togetherwith the stages at which representations may bemade, is easily ascertained by consulting the LPAs’websites. It is up to NHS organisations to find outfrom their LPA the stage it has reached in thepreparation of the LDP and how to becomeinvolved.

2.17 In preparing its LDP each LPA is expected to takeaccount of national planning policy guidance andmust, by law, take account of the Wales SpatialPlan.

2.18 In preparing its LDP, a LPA will at an early stageinvite the submission of so-called candidate sites.This is an opportunity for NHS organisations topromote sites for both new healthcaredevelopments and surplus sites for alternative usesand redevelopment. All submitted candidate sitesare assessed by the LPA in preparing its strategyfor the area and in allocating land for futuredevelopment.

2.19 LPAs also prepare supplementary planningguidance on a range of topics. This may includedevelopment briefs for large development sites,where the opportunity exists to stipulate the rangeof community (including healthcare) facilitiesnecessary to support large developments to ensurethat they are sustainable.

NHS involvement

2.20 LDPs are subject to ongoing consultation. NHSorganisations will have opportunities to promotesites and to comment on other land useallocations and on LDP policies. Because of theimportance attached to development plans, it isvital that full advantage is taken of theseopportunities. NHS organisations, individuallyand collectively, should therefore ensure that theirhealthcare and property interests are properlyreflected and protected at all stages in thepreparation, adoption and revision of LDPs.

2.21 If LDPs do not reflect NHS requirements, it maybe more difficult to obtain planning permissionfor the development of new or existing premises tomeet future healthcare needs or to obtain planningpermission for alternative uses/redevelopmentprior to the disposal of surplus property.

2.22 NHS organisations need to influence thedevelopment of local policy on planningconditions and, particularly, planning obligationsin order to secure contributions towards the costof healthcare facilities: (This could includedesignated land, buildings or financialcontributions). For example, this could relate to aplanning condition on the permission for a newhousing development to provide a site for a localprimary care centre or a contribution under aSection 106 Agreement where a development orseries of developments will create additionalhealthcare needs as a result of a populationincrease. Similarly, NHS organisations shouldmake representations on site and area developmentbriefs to ensure proper provision for healthcarefacilities to serve new or expanded populations.

2.23 NHS sites that may become surplus torequirements should be protected by securingspecific land use policies for these sites in the LDP.This is particularly important when consideringfuture disposals of hospital sites in out-of-town,countryside locations or in green belts or greenwedges, where alternative uses can be difficult tosecure unless previously identified by the LPA.

2.24 Where LPAs do not respond satisfactorily toproposals from NHS organisations, planningconsultants should be appointed as soon aspossible to negotiate with the LPA and, ifnecessary, make public representations.

Development control2.25 The NHS estate is subject to development control

and, with limited exceptions, planning permissionis required for any material change of use, any new

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building or the alteration/conversion of existingbuildings and for building and engineeringoperations.

2.26 The Crown is no longer immune from town andcountry planning law. It now has to apply forplanning permission from the LPAs like any otherdeveloper. This will affect any NHS organisationholding Crown property.

NHS involvement

2.27 NHS organisations should take an active role inthe formulation of planning applications they areto submit or which are to be submitted on theirbehalf by third parties. They should also be awareof significant planning applications that are likelyto have a direct impact on the provision ofhealthcare services.

2.28 As soon as NHS organisations identify land andproperty as surplus to NHS requirements, theyshould discuss potential changes of use orredevelopment with their LPA, as this may increasethe development potential of the land and property.

2.29 Good communications between NHSorganisations and LPAs will ensure NHSorganisations are informed, at an early stage, ofdevelopments that may have an impact on healthor healthcare demand and hence demand forhealthcare facilities.

Exclusions

2.30 Certain activities do not constitute development;and some that do, do not require planningpermission. Planning permission is not generallyrequired for:

• internal alterations;

• changes of use where both the old and newuses fall within the same use class as set out inthe Town and Country Planning (Use Classes)Order 1987 and its subsequent amendments;

• developments permitted by the Town andCountry Planning (General PermittedDevelopment) Order 1995 (GPDO).

2.31 It is advisable to contact the LPA or a planningconsultant if there is doubt about whetherplanning permission is required.

Use Classes Order 1987 and its subsequentamendments

2.32 NHS organisations should be familiar with usespermitted within their estate under the Use ClassesOrder and its subsequent amendments. The classes

of particular relevance to NHS organisations areC2 (residential institutions), C2A (secureresidential institutions), C3 (dwellinghouses) andD1 (non-residential institutions).

General Permitted Development Order 1995

2.33 The GPDO, as amended, sets out a list of types ofdevelopment for which the order effectively grantsplanning permission without having to apply tothe LPA. NHS organisations should be familiarwith this list, particularly Part 32, which grantslimited rights for developments on hospital sites.

Planning applications

2.34 The policies and principles set out in thedevelopment plan and in national planning policyguidance should be taken into account in thepreparation of planning applications. It is alsohelpful to discuss development proposals withofficers of the local planning and highwayauthorities before submitting an application forplanning permission. Such pre-applicationdiscussions are a helpful way of ascertaining theLPA’s likely requirements in respect of thedevelopment and of ensuring that all theinformation likely to be required by the LPA isprovided in support of the application.

2.35 General guidance is that:

• where the development proposal is minor andclearly straightforward, the application may bemade by the relevant project manager;

• where the development proposal is morecomplex or likely to be contentious,consideration should be given to employingplanning consultants at an early stage both toprepare the application and supportingdocuments and to negotiate with the LPA onmatters such as planning conditions andplanning obligations.

2.36 Any permission given will relate to the precisedetails described in the application, so it isimportant to make sure the application is clear: forexample, a “change of use permission” does notpermit consequential physical works to be carriedout unless they were specified in the application.

2.37 Two types of application for planning permissionmay be submitted to the LPA: full or outline.Which type is chosen will depend on a variety offactors, but outline planning permission may besought only for the erection of buildings. Changesof use cannot be dealt with by an outlineapplication and require full planning permission.

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2.38 Advice should be sought from the LPA (andplanning consultants, if employed) about the typeof assessments required and documents to besubmitted with the planning application. It isincreasingly the case that a wide range ofsupporting information has to be submitted: forexample, transport assessments and environmentalinformation.

Full application

2.39 Where the application is for full planningpermission, full details of the development have tobe submitted including, when necessary, detaileddesign drawings. Some matters – for example,landscaping – may sometimes be dealt with byconditions attached to the planning permissionbut, increasingly, LPAs are requiring planningapplications to be fully supported.

Outline application

2.40 The purpose of an outline planning application isto establish the principle of development.Notwithstanding this, LPAs may requireconsiderable supporting information and areentitled to stipulate that further details should beprovided. The time when one may submit a ‘bald’planning application supported by just a red lineplan have long since passed, especially for largedevelopment sites. In such cases, master plans orillustrative development frameworks are nowinvariably required.

2.41 On outline planning applications certain mattersmay be reserved for subsequent approval by theLPA but those details will need to be fullyapproved by the LPA before development cancommence. Applications to discharge the so-calledreserved matters have to be submitted for theapproval of the LPA within three years, otherwisethe outline permission will lapse.

Supporting documentation

Transport assessments

2.42 Transport issues are becoming increasinglysignificant in determining planning applications.TAN 18 Transport (Welsh Assembly Government,March 2007) advises that a transport assessment(TA) will be required to accompany planningapplications for developments that are likely toresult in significant trip generation. Annex D ofTAN 18 identifies the thresholds for a variety ofuses, including a hospital in excess of 2500 squaremetres and a housing development of more than100 dwellings. Specific advice on TAs for hospitalsis provided in paragraph D6 of the annex.

2.43 TAN 18 advises that the TA process should alsoinclude the production of a TransportImplementation Strategy (TIS), which should setobjectives and targets relating to managing traveldemand for the development and set out theinfrastructure, demand management measures andfinancial contributions necessary to achieve them.LPAs may also expect to see green travel plans,especially for larger developments.

Environmental impact assessments

2.44 Environmental impact assessment (EIA) is aprocedure that must be followed for certain typesof project before they may be given planningpermission or even, in certain cases, beforereserved matters may be approved. The procedureis a means of assessing the project’s likelysignificant environmental effects, and the scope forreducing them, through mitigation orcompensation. The output from an EIA is anenvironmental statement (ES), which is submittedto the LPA in support of the planning application.The requirements for an EIA are set out in theTown and Country Planning (EnvironmentalImpact Assessment) (England and Wales)Regulations 1999.

2.45 Because any requirement for an EIA is likely todelay the preparation and submission of aplanning application, early consideration shouldbe given as to whether a proposed developmentwill require an EIA. Where there is any doubt asto whether an EIA is required for a particulardevelopment, the prospective applicant may applyto the LPA, under Regulation 5, for a ‘screeningopinion’, which is a definitive statement by theLPA of whether an EIA is required. In the event ofan EIA being required, application may also bemade, under Regulation 10, for a ‘scopingopinion’, which will determine the extent of theEIA in any particular case.

2.46 The preparation of an EIA is a substantial piece ofwork which will usually take several months tocomplete. Where the impacts include ecologicalimpacts, lengthy survey periods may be entailed toensure that seasonal data is collected, and this canhave a significant bearing on the pre-submissiontimescale for planning applications.

Archaeology/ecology assessments

2.47 Even where an EIA is not required, someapplications will still need to be accompanied byan assessment of any archaeological or ecologicalinterests.

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2.48 For archaeology, policy advice is set out in WelshOffice Circular 60/96: Planning and the HistoricEnvironment: Archaeology. The requirement mayrange from a desk-top study of the archaeologicalresource to a field excavation using geophysicalsurveying or trial trenching, with the results beingreported to the LPA (and its own archaeologicaladvisers) before the planning application isdetermined. Where some archaeological resource islikely to exist, LPAs may require, by condition,that the site is fully excavated prior todevelopment or that an archaeologist maintains a‘watching brief ’ during earth moving and theexcavation for the foundations. In all such casesthe NHS organisation will need to be advised byan archaeologist.

2.49 For ecology, an initial habitat survey (known as aPhase 1 survey) is often requested, together with asurvey of protected species. The survey willidentify habitats of nature conservation interestand a data trawl will identify sites of natureconservation importance, both statutory (such asSites of Special Scientific Interest) and non-statutory (such as Sites of Nature ConservationInterest), The presence on a site of priorityhabitats and/or protected species (for example,bats, great crested newts.) can be very inhibitive ofdevelopment prospects and will need to be fullyresearched before the planning permission isgranted. Where protected species are present, orthought to be present, it is no longer permissiblefor such surveys to be deferred and dealt with byplanning condition; they must be carried out andtheir results taken into account before theplanning permission is granted. In certain cases,protected species can be translocated and a licence(obtainable from the Welsh Assembly Governmentor the Countryside Council for Wales) must beobtained beforehand.

Flood consequences assessments

2.50 The Welsh Assembly Government has issuedguidance on flood risk: TAN 15 Development andFlood Risk (July 2004). The TAN is accompaniedby a series of development advice maps thatcategorise the flood risk throughout Wales.Depending upon the location of any site inrelation to the flood risk categories, a planningapplication may need to be accompanied by aflood consequences assessment, which should beprepared by engineers with particular expertise inthis field. It is advisable to consult thedevelopment advice maps at an early stage in theplanning process as the flood risk designation can

have a significant effect on both the developabilityof any site and the timescale for promoting it.

Design and access statements

2.51 The Welsh Assembly Government placesconsiderable emphasis on the design quality ofdevelopment projects and has issued related policyadvice: TAN 12 Design (2002). TAN 12 statesthat planning application design statements shouldbe submitted with all planning applications fordevelopment that has design implications. Suchstatements are required for outline as well as fullplanning applications and paragraphs 4.8-13 ofTAN 12 identify the desired scope and content ofdesign statements.

2.52 The Town and Country Planning (GeneralDevelopment Procedure) (Amendment) (Wales)Order 2006 introduced a requirement that mostapplications for planning permission now have tobe accompanied by an access statement, thepurpose of which is to demonstrate that theprinciples of inclusive design have been taken intoaccount in the design of the development. Thedesign and access statements may be combinedinto a single document.

Determination of planning applications

2.53 In determining planning applications, LPAs musthave regard to all material planning considerations.Such considerations include the policies set out indevelopment plans, emerging development plans,national and regional planning guidance and otherdocuments such as supplementary planningguidance. Section 38 of the Planning andCompulsory Purchase Act 2004 requires that, wherethe development plan is material to a planningapplication, the determination of that application“must be made in accordance with the plan unlessmaterial considerations indicate otherwise.” Thesame considerations apply on appeal.

2.54 In considering planning applications, LPAs arerequired by law to consult with certain bodies (thestatutory consultees) and, generally, they consultwith others as well. They should also consult withthose who live around the site and with the public.Whenever it is appropriate to do so, NHSorganisations should be involved in the publicconsultation in order to influence decisions thatimpact on healthcare provision.

2.55 Certain applications may be referred by the LPAto the Design Commission for Wales (DCfW) orthe Commission may request that it be consulted.

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It is also open to an applicant to consult theCommission in the formative stages of preparingits application and to seek the Commission’sadvice on the design aspects of the scheme. This isparticularly appropriate where the project is large(for example a new hospital) or the site isprominently or sensitively located.

2.56 Once the application has been considered, it maybe determined under powers delegated to planningofficers, but it is more usual – especially for largeror more complex applications – for the planningofficer to make a recommendation to the planningcommittee of the council. The recommendationwill be contained in a written report to thecommittee which will be available for publicinspection three working days prior to thecommittee meeting. The planning committee isnot bound to follow the planning officer’srecommendation but must be prepared todemonstrate that it had good planning reasons fordeparting from it.

2.57 Although the planning application may bedeferred by committee – for example, to enablemembers of the committee to visit the site or toseek further information – the final decision willbe one of the following:

1. Refuse the application.

2. Grant the application, subject to conditions.

3. Grant unconditionally.

4. Defer approval to allow a Section 106agreement to be completed.

Where the LPA fail to determine a planningapplication, there is a right of appeal (see below).

2.58 Planning permissions are granted subject toconditions. Conditions impose restrictions on thedevelopment and many conditions require thesubmission of further details for the approval ofthe LPA. Certain conditions (known as conditionsprecedent) require further details to be agreedprior to the commencement of development. It isvery important that all conditions precedent aredischarged prior to commencement of work as,otherwise, the permission may be regarded asinvalid. Both full and outline planningpermissions are granted subject to a conditionstating the period within which they should beimplemented. For all outline planning permissionsthe so-called reserved matters must be approved bythe LPA before development may commence.

2.59 It is very important to implement a planningpermission within the stipulated period, otherwiseit will lapse. Once lapsed, the LPA is not obliged

to renew the permission, but it should have a goodplanning reason for not doing so, such as a changein planning policies or other materialcircumstances.

2.60 NHS organisations should make sure that anyconditions imposed are not unduly onerous andcan be complied with. Unacceptable conditionscan be appealed or made the subject of anapplication to vary or delete them under Section73, Town and Country Planning Act 1990.

Planning conditions

2.61 Planning conditions are applied to most planningpermissions. They limit and control thedevelopment and the way in which the planningpermission may be implemented.

2.62 Planning conditions can cover a wide range ofmatters, but often require certain works to be doneat specific phases of the development or requirefurther details of the development to be submittedto and approved by the LPA, often prior to thedevelopment proceeding. Government guidance onplanning conditions is set out in Welsh OfficeCircular 35/95: The Use of Conditions in PlanningPermissions, which also contains an appendix ofmodel conditions. The guidance sets out six tests forconditions. These conditions should be:

• necessary;

• relevant to planning;

• relevant to the development to be permitted;

• enforceable;

• precise;

• reasonable in all other aspects.

2.63 Unduly onerous planning conditions/obligationsmay affect the sale price of surplus NHS propertyand the acquisition of property by NHSorganisations.

2.64 LPAs are not obliged to consult applicants on theplanning conditions that they intend to impose onany particular permission. It is, however, helpful toask the LPA for sight of the conditions in advanceand, if possible, to be allowed to comment onthem. In any event, the planning officer’scommittee report will always contain a list of theconditions and, even in the few days beforecommittee, it is possible to suggest amendments tothem. Much time and trouble can be saved bytrying to ensure that the scope and wording of theconditions are appropriate to the development.

2.65 Once a planning permission has been grantedsubject to conditions, it is possible to lodge an

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appeal against the conditions or to submit anapplication to vary or delete one or more of theconditions through a Section 73 application.

Planning obligations (Section 106 agreements)

2.66 Planning permissions may be subject to planningobligations under Section 106 of the Town andCountry Planning Act 1990 (as amended).Planning obligations are used to restrict a planningpermission for those matters where planningconditions cannot be used (for example, thepayment of a financial contribution to thecouncil). Welsh Assembly Government advice isthat whenever there is a choice between using aplanning condition or a planning obligation, aplanning condition should be preferred.

2.67 Planning obligations may be used to restrictdevelopment or use of land, to require operationsor activities to be carried out, to require the landto be used in a specified way or require paymentsto be made to the council either singly orperiodically.

2.68 LPAs commonly seek obligations from housingdevelopers for affordable housing and for financialcontributions towards the provision of schoolclassrooms, recreation facilities, open space, etc.NHS organisations may make representations tolocal authorities – either generally or in relation toa specific planning application – to try and requiredevelopers to provide facilities or pay monies forthe provision of local healthcare services (where anew development affects local healthcare needs) sothat existing facilities are not over-burdened.

2.69 National policy guidance on planning obligationsis set out in Section 4.7 of Planning Policy Wales(Welsh Assembly Government, March 2002) andin Welsh Office Circular 13/97: Planningobligations. This guidance stipulates that, amongother factors, obligations should be sought onlywhere they are:

• necessary;

• relevant to planning;

• relevant to the proposed development;

• fairly and reasonably related in scale and kindto the proposed development;

• reasonable in all other aspects.

2.70 Planning obligations may be secured either by anagreement between the LPA and thelandowner/developer or by the use of a unilateralundertaking. An undertaking is a deed enteredinto by the landowner/developer alone; it is oftenused on appeal, where agreement cannot be

reached with the LPA regarding planningobligations. Generally, the use of an agreement isbetter than an undertaking as it enablesobligations to be imposed on the LPA as well asthe landowner/developer: for example, to return(with interest) financial contributions that are notused for their stipulated purpose within a specifiedperiod.

2.71 Where NHS organisations are seeking planningpermission prior to selling surplus property, careshould be taken not to agree to planning obligationsthat are unreasonable. Professional (especially legal)advice should be sought before accepting anyliability or entering into a Section 106 Agreement.In all cases, LPAs should be expected todemonstrate that planning obligations meet the fivetests set out in national policy guidance.

Planning appeals

2.72 Where a planning application is refused, or adecision is not made within the statutory periodallowed, or conditions are imposed that areunacceptable, it is advisable to seek specialistadvice concerning potential options. The optionsinclude:

• negotiating amendments with the planningofficer and following this up with a newapplication;

• making an application to vary or delete thecondition (Section 73 application);

• submitting an application for an alternativescheme;

• appealing against the decision.

2.73 An appeal against the refusal of planningpermission (or the discharge of reserved matters)or the imposition of conditions must be lodgedwithin six months of the LPA’s decision (that is,the date that appears on the refusal/approvalnotice). Where an appeal is to be made againstnon-determination, the appeal period is sixmonths from the end of the period within whichthe decision should have been made: either thestatutory period or such extended period as hasbeen agreed in writing between the applicant andthe LPA. The Planning Inspectorate will notnormally allow an appeal to be made outside thesix month period and it is very important,therefore, that planning application periods aremonitored closely.

2.74 An appeal is made to the Welsh Ministers and dealtwith on their behalf by The Planning Inspectorate.Most appeals are determined by an appointed

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inspector but, for some more complex or morecontentious appeals, the Inspector will make arecommendation and the determination will bemade by a committee of the Assembly. There arethree types of appeal procedure: writtenrepresentations, informal hearing and publicinquiry. The starting point in each case is thesubmission of the appeal form (obtainable fromThe Planning Inspectorate) and the grounds ofappeal.

Written representations

2.75 This is usually the quickest and cheapest type ofappeal procedure: it is most appropriate where theissues in dispute are relatively simple andstraightforward.

2.76 The appeal is dealt with by an exchange of writtenstatements by the appellant and the LPA; otherparties, including local residents, may also makewritten comments. The inspector will consider allrepresentations made within time, visit the appealsite and determine the appeal. No opportunity isallowed for an oral presentation of the argumentsor for cross-examination.

2.77 This type of appeal will typically take a fewmonths from lodging the appeal to receiving theinspector’s decision.

Informal hearing

2.78 This procedure is intended for fairly straightforwardappeals where the appellant or the LPA wishes todebate the issues in front of an inspector. No legalrepresentation is normally allowed, althoughconsultants are allowed to present the case in adebate, which is led by the inspector. Cross-examination is not allowed but questions may beput to the other side through the inspector.

2.79 The appeal process may typically take four to sixmonths.

Public inquiry

2.80 This procedure is most appropriate for large,complex or controversial schemes and where cross-examination of expert witnesses is considerednecessary. This procedure is the most costly andtime-consuming, and usually (but not necessarily)involves the use of legal representatives, eithersolicitors or barristers.

2.81 An appeal decision may take up to a year fromlodging the appeal for a typical proposal, and maybe significantly longer for particularly complex orcontentious appeals.

2.82 Whatever appeal method is used, appeal decisionsare subject to challenge in the High Court, butonly on points of law.

2.83 A careful evaluation of the cost benefits must betaken by an NHS organisation before lodging anappeal and, in appropriate cases, an opinion onthe likelihood of succeeding on appeal may beobtained from a planning consultant or a planningbarrister. Once an appeal has been lodged, stricttimescales apply and both parties are expected tobehave reasonably. At a public inquiry or aninformal hearing, unreasonable behaviour – suchas the late withdrawal of an appeal or the failure tosupport a refusal reason – can lead to an award ofcosts against the appellant or the LPA, as the casemay be.

2.84 Where early information indicates that there maybe a significant conflict with the development planor national planning guidance, this should becarefully considered before resorting to appeal.

Other planning control issues

2.85 The following planning issues should also beconsidered:

• while all utility companies and bodiesresponsible for roads and drains will beconsulted by the LPA as part of the planningprocess, it is advisable to make a direct enquiryto them on a scheme of any substance, beforepreparing plans for the scheme or applying forplanning permission. This should establishwhether there are any problems of capacity withservices that may prevent or delay any proposeddevelopment from proceeding. Such difficultiescan be overcome through phasing thedevelopment, deferring its commencement or byfacilitating off-site infrastructure improvements;

• Building Regulations consent may be required;the architect/building surveyor/project managershould deal with these points;

• other legal agreements may need to beconcluded before implementing planningpermission, for example, agreements relating tooff-site highways work, on site highways andsewers.

Special interestsConservation areas

2.86 Where the LPA considers that an area has specialcharacter that ought to be preserved or enhancedit may, after due consultation, designate it as aconservation area. There are no rights of appeal

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against this designation but representations (priorto the decision being made) will be considered bythe LPA.

2.87 Once a conservation area has been designated assuch:

• there will be extra controls on the demolitionof any property in the conservation area:conservation area consent (which is separatefrom and additional to planning permission)will probably be required;

• any development must preserve or enhance thecharacter and appearance of the conservationarea;

• trees, whether or not protected by a treepreservation order, cannot be felled withoutconsent being first obtained;

• some permitted development rights may havebeen withdrawn by the LPA, meaning thatmore types of development will require aspecific grant of planning permission;

• outline planning applications will not normallybe accepted and the LPA has the power torequire that any application should be for fullplanning permission.

2.88 If designation as a conservation area is likely toadversely affect future developments,representations to the LPA should be prepared bya planning consultant with conservationexperience. Although the design quality of ascheme is always a material planningconsideration, it is likely to be more significant fora scheme located in a conservation area.

Listed buildings

2.89 The Planning (Listed Buildings and ConservationAreas) Act 1990 contains provisions for theprotection of buildings considered to be of specialarchitectural or historic interest. In Wales the list ismaintained on behalf of the Welsh AssemblyGovernment by Cadw: Welsh Historic Environment.

2.90 Buildings are listed as a result of periodic surveysof particular areas, but may also be “spot-listed” ifthey are thought to be vulnerable to demolition orneglect. Anyone can ask that a building be listed.There is no right of appeal against a buildingbeing listed, but an owner or a developer can writeto Cadw to ask that any building be removed fromthe list.

2.91 The listing extends to any structure affixed to thebuildings and to structures within the curtilage ofthe listed building, such as garden walls,outbuildings.

2.92 If an unlisted building of possible architectural orhistoric interest is located on a site where aplanning application has been made (or whereplanning permission has been granted), anapplication may be made to Cadw for a certificateof immunity. If granted, the certificate willpreclude the building from being listed for aperiod of five years. Applying for a certificatecarries with it a risk that the building will be listedso the pros and cons of making such anapplication need to be carefully considered.Specialist advice should be sought concerning thisprocedure.

2.93 The LPA may require the owner of a listedbuilding to carry out essential repairs by serving arepairs notice. It is therefore advisable to keeplisted buildings in good repair.

2.94 Listed building consent is normally required forany alteration (including internal alteration) to alisted building and is additional to anyrequirement for planning permission. Failure toobtain such consent is a criminal offence.

2.95 Listed building consent is also required prior todemolishing a listed building. Such consent isgranted only in exceptional circumstances andwhen certain tests have been met: see paragraphs91-92 of Welsh Office Circular 61/96: Planningand the Historic Environment: Historic Buildingsand Conservation Areas. Mounting a case tosecure consent may be expensive, but should notbe presumed to be impossible. Consideration ofthis action should be taken only after seekingspecialist planning and legal advice.

2.96 Whenever an NHS organisation wishes to alter ordispose of a listed building it should appoint aconsultant with specialist historic buildingsexperience to advise and negotiate the mostbeneficial planning permission and listed buildingconsents.

Trees

2.97 Section 198 of the Town and Country PlanningAct 1990 sets out the procedure for the protectionof trees, whether individually or in groups or areas,through the issue of tree preservation orders(TPOs). These orders prevent the lopping, fellingand cutting down of trees without the priorconsent of the LPA.

2.98 On receipt of a notice of a TPO, an NHSorganisation has 28 days to object. The followingprocedures should be followed:

• if the trees are manifestly unsuitable forprotection (that is, they are dead or

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dangerous), the NHS organisation shouldinform the LPA that they should not beincluded in the TPO and, in consultation withthe LPA, make arrangements for removal of thetrees;

• if in relation to future developments, thelocation of the trees will not be an issue,regardless of the TPO, there may be no needto object;

• if the imposition of the TPO will adverselyaffect potential developments, the NHSorganisation should object to the order. Aspecialist arboriculturalist experienced inappeals work should be instructed to prepare areport on the age, condition and amenity valueof the trees. If the trees are not worthyspecimens, he/she may be able to persuade theLPA to change its mind;

Beware of the penalties for breach; it is a criminaloffence, and personal liability may apply. The finemay be considerable, and replanting will probablybe required.

2.99 NHS organisations may find it beneficial todevelop a tree/woodlands management schemewith their LPA.

Enforcement2.100 It is unlikely that the LPA will take enforcement

action against an NHS organisation withoutwarning and considerable discussions. If disputescannot be resolved amicably, it is essential to takethe advice of planning solicitors and planningconsultants as soon as possible.

2.101 There are a variety of enforcement powers that areopen to an LPA:

• enforcement notice;

• stop notice;

• temporary stop notice;

• planning contravention notices;

• breach of condition notices;

• injunctions.

2.102 On receipt of any of the above notices orinjunctions seeking compliance with planningregulations, a lawyer should be instructedimmediately. There are very strict time limits forlodging an appeal if required. Once the noticebecomes operative, it is a criminal offence not tocomply with it.

2.103 The procedure for ensuring compliance withconditions annexed to a planning permissionshould be noted. Here, the LPA may issue abreach of condition notice whereby compliancecan be imposed immediately; failure to comply isa criminal offence. There is no right of appealagainst a breach of condition notice. There is achance that personal liability could ensue in thesesituations and fines can be considerable.

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Introduction3.1 This section describes the use of strategic service

plans for the planning and delivery of healthcareservices, and the various toolkits, techniques andguidance that may be used when developing theseplans.

3.2 It also describes the use of strategic assetmanagement techniques to align property assetswith healthcare delivery.

3.3 Furthermore it describes the need to develop estatestrategies and the different business casemethodologies available, and highlights theimportance of imbedding good design principlesin these procurement processes.

General principles3.4 Healthcare delivery is changing from a

performance management system to a businessmodel with much more emphasis on customercare.

3.5 NHS organisations will need to be able to planand deliver high-quality, accessible healthcarefacilities through a range of providers includingother NHS providers, the private sector and thirdparties (social enterprise units, voluntaryorganisations and charities).

3.6 To be able to deliver this change, strategic serviceplans should be prepared. These plans will thenneed to be developed into practical estate strategiesand deliverable business cases.

Strategic service plans3.7 A strategic service plan is a document that should

set out expected demand for services within aparticular geographical area (healthcare economy)and examine options for meeting that demand.

3.8 It is owned and developed by a wide range ofstakeholders, including NHS trusts, Local HealthBoards, GP practices, local authorities, charitiesand voluntary organisations, and the public.

3.9 A strategic service plan should include:

• innovative methods of service delivery,including those that cut across establishedorganisational boundaries;

• practical applications of current guidance andinitiatives;

• local expertise (patient, clinical and strategic);

• contributions from available partners (forexample private providers and voluntary sector);

• details of anticipated and required workforcechanges.

3.10 Service delivery options should take account ofchanging expectations for buildings and facilities,developments in construction, informationtechnology (IT) and medical technology, andfinancial opportunities and constraints.

3.11 The expected benefits to services from theproposals in the strategic service plan should belisted, including how each benefit will be achieved,who will be responsible for its achievement and atarget date for completion.

3.12 The principal focus of a strategic service plan isservice development. However, it should, byassociation, also provide development plans for:

• workforce;

• estates and facilities;

• IT;

• finance.

Techniques and toolsHealth impact assessments (HIAs)

3.13 A health impact assessment (HIA) is a method ofevaluating the likely intended and unintendedeffects (beneficial and adverse) of policies,initiatives and activities on the health of apopulation and groups within it.

3.14 It offers a framework within which to consider, andinfluence, the broad determinants of health. Theaim is to maximise health gain and minimise healthrisks. It may contribute to addressing inequalities inhealth.

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3 Planning strategic investment in the estate andthe business case process

Estates impact assessments

3.15 When new services and buildings are beingplanned, an estate impact assessment should becarried out to ascertain how existing services andaccommodation will be affected.

3.16 Would increased capacity lead to the closure ofunits? If so, could surplus accommodation be usedfor alternative NHS services? If not, should it bedisposed of? Alternatively, there may be anopportunity to expand services to complementthose being proposed: again, the consequences ofthis option should be fully assessed.

Achieving Excellence Design Evaluation Toolkit(AEDET) Evolution

3.17 Healthcare building design frequently involvescomplex concepts which are difficult to measureand evaluate. The AEDET Evolution toolkitevaluates a design by posing a series of clear, nontechnical statements encompassing the three areasof Impact, Build Quality and Functionality.

3.18 The AEDET Evolution Toolkit is a majorinfluence, assisting NHS organisations indetermining and managing their designrequirements from initial proposals through topost project evaluation.

3.19 The use of the AEDET toolkit is a mandatoryrequirement for all NHS organisations whendesigning new facilities. Further information canbe obtained from Welsh Health Estates:Intranet: http://howis.wales.nhs.uk/wheInternet: www.wales.nhs.uk/whe

BREEAM Healthcare

3.20 The BRE Environmental Assessment Method(BREEAM) is used to conduct environmentalimpact assessments on both existing estate andnew builds/refurbishments. It enables the appraisalof an estate in terms of energy performance, waterconsumption, and waste and transportmanagement – with green procurement conceptsembedded throughout.

3.21 All major construction projects in the NHS inWales are required to demonstrate a BREEAMscore rating of ‘Excellent” for new builds and“Very Good” for refurbishments. To achieve thisstandard requires environmental factors to beconsidered at a very early stage of the businesscase process. Careful planning is required at thecommencement of the project and further advicecan be received from Welsh Health Estates.

3.22 For advice regarding the use of BREEAM onprimary care developments contact Welsh HealthEstates.

Strategic asset management3.23 Strategic asset management integrates land and

property development with service planning toachieve the most sustainable investment/disinvestment decisions. It should be used at anearly stage of service planning to achieve cost-effective solutions.

3.24 Strategic asset management should lead to:

• a co-ordinated approach to the implementationof Government policies to modernise theNHS;

• improved co-ordination of public sectorinvestment across communities to improvehealthcare;

• better partnership working between allstakeholders;

• improved strategic fit of existing facilities in asustainable manner.

3.25 Strategic asset management brings together thetools and techniques outlined in paragraphs3.13–3.22 to facilitate a property strategy toensure that service changes occur quickly andefficiently.

3.26 This should facilitate improvements for better useof existing facilities, use of alternative non-NHSfacilities or provision of new buildings. Underusedor unsuitable assets should be identified and soldto release capital for reinvestment in new servicesor facilities.

3.27 Long-term benefits of strategic asset managementinclude:

• alignment with business direction – propertyreflects what the NHS organisation wants toachieve and supports delivery;

• capital recycling;

• better procurement of healthcare facilities;

• efficiency reviews.

Estate Strategies3.28 A well thought out estate strategy is an essential

element in the provision of safe, secure, high-qu

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