How to mend a broken planning system

13 Aug 2020

Planning and Environment

By Jonathan Clay 

The Problem?

There is a widespread view that the existing planning system is broken” said the BBC Today programme on Monday 8 August, introducing the White Paper.

The principal thesis behind that assertion is that the current system of land use planning, which began under the Atlee Government in the 1947 Town and Country Planning Act, was responsible for (a) shortage of houses; (b) high house prices, (c) long delays in granting planning permission, and (d) widespread disillusionment and disengagement with the planning process by the public. At the heart of this problem lies the system of local development plans generated by local planning authorities, who are then the principal arbiters in decisions to grant planning permission.

Those strongly held and oft-repeated contentions do not go undisputed. The Letwin Report in 2018 concluded that the fundamental constraint on the delivery of housing was the rate at which the market will absorb the homogenous product of the housebuilders (See also Is housing land supply constrained by the planning system? by Dr Quintin Bradley). Shelter also asked the MHCLG for evidence that the shortage of housing permissions and land supply was the reason for unaffordability of housing and were told that:

The information you requested is not held by the Ministry of Housing, Communities and Local Government. We have undertaken work to look at various international planning systems but have not carried out any assessments falling within the scope of the request.”
Curiously, the White Paper identifies policy rather than legislation as the problem, blaming “a policy framework which makes it almost impossible for [planning officers] to insist upon beautiful and sustainable new homes and place.”

The Solution?

The solution proposed in the White Paper involves a radical change to the status and content of local plans.

It is proposed that the NPPF will become the source of ‘policy’, not to be repeated in local plans. Local plans would be demoted to the identification of “site or area-specific requirements”, alongside “locally produced design codes”.

All land will fall under one of three categories (Growth, Renewal and Protected). Identifying which land goes into each category is going to be the major battlefield of the local plan process.

Growth Areas would automatically grant outline planning permission for the principle of development, so the role of the LPA in development management would be seriously limited. Further details would be agreed, and full permission achieved, through streamlined and faster consent routes which focus on securing good design and addressing site-specific technical issues. There is no provision for involvement of the public at this stage of the development management process.

Detailed planning permission could be secured in one of three ways, none of which involves local and neighbourhood communities. The premise is that the main emphasis for community involvement should be at the plan-making stage, to reduce the scope for “a small minority of voices, some from the local area and often some not” to shape outcomes at the planning application stage. So woe betide any local residents who do not make their opinions about sites heard at the plan-making stage.

For exceptionally large sites the Nationally Significant Infrastructure Projects regime “could be an appropriate route to secure consents”. Similarly, there will be reform of planning powers for Development Corporations to reflect the new framework.

In Renewal Areas, there would be a general statutory presumption in favour of development. Consent for pre-specified forms of development could be granted automatically if the scheme meets design and other prior approval requirements. For other types of development, a faster process is envisaged where a planning application for the development would be determined in the context of the local plan description of what development the area or site is appropriate for, and with reference to the NPPF. 

In both the Growth and Renewal areas, it would still be possible for a proposal which is different to the plan to come forward, but this would require a specific planning application and is “expected” to be the exception rather than the rule. The emphasis on a plan-led system, combined with the proposed removal of a requirement to demonstrate a 5-year land supply, would assist here.

In Protected Areas, any development proposals would come forward as now through planning applications being made to the LPA (except where they are subject to permitted development rights or development orders), and judged against policies set out in the National Planning Policy Framework.
The existing policy for protecting the Green Belt would remain. Presumably, however, the emphasis on delivering 10 years housing land supply means that housing need, as now, can provide the exceptional circumstances that allow for release of Green Belt land for development. It should be noted that the White Paper is undecided whether “policy on” constraints can trump the requirement to identify Growth areas sufficient to meet the level of need to be identified centrally by the government.

The form of local plans would be updated to be visual and map-based, standardised, based on the latest digital technology, interactive, based upon data standards and digital principles, rather than document-based. The aim is to make it easier for people to understand what is being proposed where and how it will affect them. At this point the White Paper disappears into jargon – local authorities will “rethink how they produce their local plans, and profoundly re-invent the ambition, depth and breadth with which they engage with communities.”

The “simplification” of local plans will also include:

  • Abolishing the Sustainability Appraisal system and developing a simplified process for assessing the environmental impact assessment.
  • Abolishing the Duty to Cooperate (although it is recognised there is a need to work across boundaries for major infrastructure or strategic sites).
  • Providing a “slimmed down” assessment of deliverability for the plan to be incorporated into the “sustainable development” test.

What process for engagement?

Local need is to be determined centrally/ nationally. So goodbye the starting point for development management decisions being the local plan. Goodbye section 70(2) TCPA 1990, goodbye section 38(6) PCPA 2004. Indeed, the automatic grant of planning permission on Growth and Renewal areas removes the entire discretionary approach found in legislation since 1947, where locally elected Councillors determine applications in accordance with the local plan unless material considerations indicate otherwise and where the public has a right to be consulted and to comment on individual applications for planning permission.

Some limited reassurance is given: LPAs would continue to have choices about how to meet nationally identified needs: for example through more effective use of existing residential land, greater densification, infilling and brownfield redevelopment, extensions to existing urban areas, or new settlements.

Neighbourhood Plans are recognised as “an important means of community input” and are to be retained: but only, it seems, to concern themselves with form and appearance of buildings and little else. There does not seem to be any involvement of Neighbourhood Plans in deciding what land should be for Growth /Renewal, or what policies should apply in areas earmarked for Protection.

The verdict

Gone will be the current 815 day average local plan-making process, doubled from the 415 day average in 2009 (presumably as a result of more recent government reforms of the planning system and the endless tinkering with national policy which seems to have had exactly the same objective of speeding it up while achieving precisely the opposite). Local authorities and the Planning Inspectorate will be required to meet a statutory timetable for key stages of the process, and sanctions will be imposed on those who fail to meet it, including the risk of “government intervention”.

As an apparent afterthought in the ten “Proposals” under Pillar 1 “Planning for Development” is “Proposal 10: A stronger emphasis on build-out through planning”.

But a single paragraph is devoted to the aim of supporting a faster build-out of the 1 million homes currently permitted and awaiting development, through seeking to “include a variety of development types by different builders which allow more phases to come forward together.”

That should get the system moving.