Wednesday, 22 July 2015

How to ‘fix’ the planning system

Earlier this month there was a flurry of announcements intended to make it look as if the government is at last prepared to do something about the continuing failure (primarily on the part of the development industry, but they of course are excused from any blame by the government) to deliver sufficient new housing to meet ever-growing demand. This process started with a joint newspaper article by Cameron and Osborne in The Times on 4 July, foreshadowing the budget statement and various press releases and other documents issued to coincide with the budget on 8 July, and then on 10 July a policy document described as the government’s “Productivity Plan” and entitled Fixing the Foundations.

I have commented before on the Treasury’s habit of taking ownership of such announcements, rather than De-CLoG, leaving that subservient department to obey the commandments of the Chancellor handed down on tablets of stone from the Mount Sinai of Downing Street. This is nothing new; the tendency of the Treasury to take charge was equally evident under the last Labour government. But Gorgeous George has always found this approach particularly to his taste, and he has been in a notably gung-ho (not to say hubristic) mood since the election.

The government’s proposals for further changes to the planning system are set out in Chapter 9. With regard to housebuilding, the document acknowledges the longstanding failure to build enough homes to keep up with growing demand, and notes that housing starts fell by nearly two-thirds between 2007 and 2009, with the number of first time buyers falling by more than 50% between 2006 and 2008 (carefully selected figures to coincide with the last period of Labour government).

The document blames “an excessively strict planning system”, which prevents land and other resources from being used efficiently, thereby impeding productivity by increasing the cost and uncertainty of investment, hindering competition, constraining the agglomeration [?] of firms and the mobility of labour, and encouraging land speculation, rather than productive development. Ministers assert that the resulting under-supply of housing, especially in high-growth areas of the country, has pushed up house prices.

The document recognises that the glacial pace of the plan-making system has been a major constraint in achieving the release of housing land, although they refuse to acknowledge one of the primary factors in this – the abolition under Eric Pickles’ superintendency of the Regional Spatial Strategies, which were designed to ensure that all authorities should contribute their share to meeting housing land need. The weak and wishy-washy ‘duty to co-operate’ that was incorporated in the Localism Act failed (as nearly everyone predicted) to provide an effective alternative, and even the NPPF has only had a limited effect in securing the release of housing land.

The plain fact is that local planning authorities, with all the local political pressures to which they are subject, cannot be trusted to deliver the housing that is needed in their areas in order to meet demand not only locally but generated in neighbouring areas as well. The government forswears ‘top-down planning’, but is nevertheless obliged to cast about for some mechanism that would force the hands of LPAs.

In pursuit of this objective, the government has announced its intention to take further action to ensure that local authorities put local plans in place by a set deadline. That deadline has been announced today in a written ministerial statement. It will be “early 2017” (five years after the publication of the NPPF), although it is not entirely clear whether ‘producing’ a local plan means actually adopting it, or merely publishing the first consultation draft. Furthermore, a local plan is not complete until all the DPDs are in place (a lengthy process). I suspect that what is referred to here is simply the Core Strategy.

The government proposes to publish league tables, setting out local authorities’ progress on their Local Plan. The league tables will be fairly meaningless in themselves, but where it becomes clear that LPAs are not making effective progress towards the adoption of a Local Plan, De-CLoG will intervene in those authorities and will do the job themselves. Whether this will in practice lead to faster plan-making is perhaps open to doubt.

This will be accompanied by proposals to streamline the plan-making process significantly, helping to speed up the process of implementing or amending a plan. The government also intends to strengthen the duty of cooperation between local authorities (a clear admission that this provision in the 2011 Act has been ineffective). This means that LPAs will have to be prepared to find housing land to meet the housing needs of adjoining local authority areas where they cannot be met within those areas themselves. However, you can be sure that this will produce a good deal of screaming and kicking on the part of some local councillors, who can see no reason why Midsomer Fartworthy District Council should be forced to allow houses to be built on its nice green fields just to meet the housing needs of their despised neighbours in the Borough of Clagthorpe.

There is a suggestion that further use will be made of development corporations to deliver higher-density development in designated areas. The government says it will consider how policy can support higher density housing around key commuter hubs. There is also a welcome intention to devise policy guidance to secure the release of commercial and industrial land for housing. Local planning authorities are all too prone to resist the ‘loss’ of employment land on which future commercial or industrial development is very unlikely ever to take place, and for which there is no demand in practice.

There is a more radical proposal for ‘brownfield’ sites (previously developed land), where the government is promising “an urban planning revolution”, including funding to provide infrastructure, strong local leadership to shape development and assemble sites, and the removal of unnecessary planning obstacles. The real problem, as anyone who has been involved with such sites is well aware, is the cost of remediation of site contamination where there has been an interesting and varied history of industrial uses. Developers have been known to bankrupt themselves in the process of trying to clean up sites of this sort.

Ministers contend that the planning system can create the sort of “slow, expensive and uncertain process” that reduces the appetite to build, where development proposals require individual planning permission and are subject to detailed and discretionary scrutiny. The government says it is clear on the need to promote the use of brownfield land, and that it will remove all unnecessary obstacles to its re-development, including these sorts of planning obstacles. To this end, as well as legislating for statutory registers of brownfield land suitable for housing, the government proposes to legislate to grant automatic permission in principle on brownfield sites identified on those registers, subject to the approval of a limited number of technical details. On brownfield sites, this will give England a ‘zonal’ system, like those seen in many other countries, reducing unnecessary delay and uncertainty for brownfield development. (Hands up those of you who are old enough to remember ‘zoning’ in this country, and its abolition under ‘new-style’ development plans in the 1980s.) There is also a suggestion that compulsory purchase powers may be used to assemble housing sites on brownfield land.

The assertion is repeated that delays in processing planning applications may be a significant factor preventing housing supply from responding to upturns in the market. So the government proposes to legislate to allow major infrastructure projects with an element of housing to apply through the Nationally Significant Infrastructure Regime (i.e. taking the project out of the normal planning system and shoving it through the fast-track procedure for Development Consent).

There is a threat to further tighten the thumb-screws of the planning performance regime, so that local authorities making 50% or fewer of decisions on time are at risk of designation. The performance regime will also be extended to minor applications, so that local authorities processing those applications too slowly will be at risk of designation.

An unspecified fast-track certificate process is also proposed for establishing the principle of development for minor development proposals, coupled with an intention to significantly tighten the ‘planning guarantee’ for minor applications (whatever that means).

Section 106 agreements have also been identified as a delaying factor, and so the government proposes to introduce “a dispute resolution mechanism” [sic] for section 106 agreements, to speed up negotiations and allow housing starts to proceed more quickly. There isn’t supposed to be a ‘dispute’ about a draft section 106 agreement; it is intended to be negotiated, but where an LPA is proving difficult, I suppose some means of shifting the log-jam may be helpful (although an appeal against non-determination may still be the most practical way forward).

Finally, in order to bring forward more ‘starter’ homes, the government intends to extend the current exception site policy, and to strengthen the presumption in favour of Starter Home developments, starting with unviable or underused brownfield land for retail, leisure and institutional uses. These starter developments will be exempted from the Community Infrastructure Levy, and from the requirement to provide or contribute towards affordable housing. Tariff-style general infrastructure funds will not be sought from them.

How this will all be brought about will become clear over the next year or so. We will presumably see yet another Planning Bill later in this parliamentary session, and some re-writing of ministerial policy to give effect to the government’s stated intentions. How effective all this will prove to be is open to doubt, and I have already heard some very sceptical views expressed as to the actual delivery of all those new houses.

The government has still not addressed some of the real bugbears of the planning system, such as the nonsenses over the ‘validation’ of planning applications. Nor have they addressed the chronic under-funding of planning departments in local authorities and the consequent lack of sufficient experienced planning officers to handle planning applications quickly and effectively. If local authorities are squeezed even harder by the Treasury (as seems likely) things will only get worse. It is not enough for ministers to will the end; they must also will the means.


Tuesday, 21 July 2015

Catching up

Readers will have noticed that three weeks have passed since I last posted anything here, when I reported the arrival of Andrew Hignett as a member of our Planning Law Team; and the last substantive post on a planning issue was three weeks before that. Three of those weeks were taken up with final completion of my forthcoming book (“A Practical Guide to Permitted Changes of Use”) of which I hope to post further details shortly. The remaining time was accounted for by a much needed holiday.

It seems to be an immutable Law of Nature that whenever I go away for more than a week or so, the government seizes the opportunity to rush out major announcements of forthcoming changes to planning law and procedure, and so it proved this time. I will comment on the government’s proposals in due course, although what has been announced so far is a bit light on detail.

Not yet formally announced, but widely anticipated, is the further amendment of the GPDO so as to make permanent the PD right for the residential conversion of offices under Part 3, Class O of the Second Schedule to the GPDO, which is currently due to expire towards the end of May next year. These further changes should occasion no surprise, as they were canvassed in some detail in last year’s consultation paper. It is only their timing that has remained in doubt, and my guess is that an amendment Order will be made so as to come into force at the beginning of October.

Those who followed my various posts on short term lets in Greater London will be aware by now that, following the re-election of a Conservative government, sections 44 and 45 of the Deregulation Act 2015 duly took effect on 26 May so as to allow the short-term letting of dwellings in Greater London, which had previously been restricted by the Greater London Council (General Powers) Act 1973. There had been a possibility that a different election result might have led to the new provisions not taking effect, but now that we are living in a Tory paradise nothing can stop the government doing exactly what they like.

There are various other matters, including some judicial decisions, that may merit comment as soon as I have the chance to write them up, and I rather hope that I can now update this Blog more frequently than I have managed to do in the past couple of months. The same applies to the rather large backlog of comments that are awaiting moderation and publication.


Wednesday, 1 July 2015


Although (as I have explained before) this blog is not intended to be a corporate or personal marketing tool, I am very pleased to be able to tell you that another leading planning and environment lawyer, Andrew Hignett, has joined KEYSTONE LAW. This further strengthens our well-established planning law team, and now gives us coverage of major infrastructure projects, particularly in the ports sector, in addition to the other specialisations we already cover. It brings the number of planning lawyers in the firm to five, all of whom have substantial experience in planning law at a senior level.

Andrew’s key skills are founded in planning and environmental law, and he principally advises ports and other organisations in the sector on marine-related development, particularly in relation to port infrastructure projects. As well as project work, Andrew advises on regulatory and harbour management issues, including the promotion of Harbour Revision Orders.

He has considerable practical experience on the impact of nature conservation law in both the UK and Europe. Andrew also has experience of the judicial review of development consents, including planning permissions, marine licences, and harbour revision orders.

Andrew is a member of the UK Environmental Law Association and is actively involved in the work of the British Ports Association. He also writes and lectures on issues of concern to the ports industry.