The Prime Minister has placed the delivery of new homes and infrastructure at the very heart of the economic recovery from the pandemic – building better, building greener, building faster.
For better or worse, further reform of the planning system is seen by the Government as necessary to secure the levelling up agenda which won its 2019 mandate, and all those involved in the planning system are likely to experience another period of naval gazing as measures to simplify it, speed it up, and make it more certain are debated ahead of new legislation and policy to provide for the "most radical reforms to our planning system since the Second World War".
Governments come and governments go, and we've been here before of course: since the last major rewriting of the planning system with the adoption of the Town and Country Planning Act 1990, successive administrations have promised big, but often delivered little as they tinker around the edges of reforms to the plan led system. There are three notable exceptions to that. The 2008 Planning Act brought in sizeable reform to the promotion of infrastructure planning, with a new system of national policy statements, development consent orders and examination now widely lauded as a genuine success. Then in 2012 we saw the introduction of the NPPF, cutting at a stroke swathes of planning policy and guidance down to less than 50 pages of text – now highly scrutinised at Inquiry and increasingly in the Courts, whilst regrettably supported by ever expanding national guidance. Then in 2014 the introduction of the Planning Court meant the process of legal challenges to planning permissions was streamlined, with a much shorter challenge period and a permission stage for statutory challenges.
The question now is whether the Government really will now completely rip up the rule book and boldly start anew to secure at scale the new, well designed and sustainable homes it has promised.
How to do that? Four possibilities:
First, the word of the moment is "zoning" – adopting a concept of which many people talk, but often with little hands-on experience and authority. Too often there is an assumption that what works very effectively in downtown New York is immediately transferrable to downtown Doncaster or Dudley. Of course zoning tools are not entirely new on these shores with LDOs, Enterprise Zones and permissions in principle demonstrating that in certain circumstances the pragmatic use of zoning instruments can indeed deliver greater levels of development; but their use is not necessarily always the key to unlocking high quality, well designed, sustainable and long-term planning of communities. Undoubtedly there is likely to be a move to greater use of tools which deliver certainty of result – but be in no doubt: if the Government wants a quick fix, a zoning revolution is unlikely to be the answer. Across England some local planning authorities have still to actually adopt a Local Plan some 30 years on from the 1990 Act e.g. York.
Second, targeted simplification. Undoubtedly there is room to deliver this, though successive administrations have arguably added red-tape whilst purporting on the other hand to remove it. Two recent examples. First, the introduction of CIL in 2010 was supposed to remove the wholesale need for section 106 agreements and the need for lengthy negotiation on the wording of planning obligations. Who knew 10 years on that CIL would itself have created a legal minefield for the developer, adding the navigation of a complex tax statute to the need on most sizeable mixed use and residential schemes to still enter into a section 106 agreement to secure key political priorities such as affordable housing, on which subject the complexity of viability reviews has substantially increased negotiation and delay. Second, localism. Putting decisions in the hands of local people and removing top down decision making where neighbourhood plans are adopted was a lofty ambition introduced by the Coalition government to create increased local community buy-in for development. Localism has had mixed results, and too often the reality has been an additional tier of local policy with little practical day to day gain for communities, and certainly no sea change in development delivery.
Third, expanding the use of the DCO regime for infrastructure to significant housing led development. Be in no doubt, this one would get the hearts of some leader writers in Fleet Street racing. A new National Policy Statement on Housing and the introduction of development consent order applications for major urban extensions and new settlements would undoubtedly help the government leverage greater control over the planning process for a significant proportion of new homes in this Parliament. Add into the mix reform of the compulsory purchase system, and – heaven forbid – a review of (almost sacred) greenbelt protection - and relatively contained interventions to existing legislation and policy could have significant impact on scheme delivery.
Fourth, the "magic money tree". Many commentators would argue it is a mistake to even broker the issue of significant planning reform in England at a time when the system is on the whole working. Better, (particularly at a time when recent budgetary restrain has been thrown out with the bathwater) to throw money at the system to make it work more efficiently. Parachuting additional Treasury funding to under-resourced planning departments, and statutory consultees, would arguably deliver immediate benefits around planning application determination times, not to mention help speed up the adoption of up-to-date Local Plans to drive greater certainty into the system.
This month the Government has already introduced legislative measures to increase the range of permitted development rights to assist with protecting the viability and vitality of the High Street, and ensured a swathe of permissions which might be lost for want of implementation due to Covid, are extended till 1 April 2021. It has undoubtedly started the Summer with a burst of energy, but it remains to be seen whether this is just the curtain call for the main event.
It is understood a committee of sages (Dame Bridgette Rosewell, Christopher Katkowski QC and Sir Stuart Lipton) has been advising the Government, and we're likely just now just days away from understanding whether we're really headed for significant change, or understanding that the Prime Minister's recent rhetoric on planning reform was mere hyperbole and puff.
AG's planning team will be holding a webinar in the near future to discuss these changes in greater detail. The webinar will include guest speakers to offer exclusive insight on what this could mean in the "new normal" and beyond.
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