REAL Reform of the Planning System

IN A DISTANT GALAXY, FAR, FAR AWAY......Following the recent General Election in May 2010, the newly elected Conlaberal government re-organised various ministries in Whitehall, setting up a new Department of Administrative Affairs which became responsible (among a large number of other things) for town and country planning, housing and local government.

The following is the text of a speech delivered shortly after the election by the Rt Hon James Hacker M.P., the newly appointed Secretary of State for Administrative Affairs.

Mr Chairman, Ladies and Gentlemen, it is a great honour for me to have been appointed to the important new ministerial office which has been created under our recently elected government to take over a wide range of administrative functions which had previously been scattered among various departments in Whitehall, and it is a very great pleasure to have the opportunity to make an important policy statement at your kind invitation, Mr Chairman, on the occasion of this, the Annual Dinner of the Great Muckslow Conlaberal Association, here in my own constituency.

As you know, I am never one to let the grass grow under my feet (especially if there is an opportunity to cover it with concrete!) (polite or possibly nervous laughter) and so I am taking this opportunity to make an important policy statement following the recent transfer to my newly created department of the responsibility for both Town & Country Planning (or ‘TCP’ as we call it in the department) and the Listing of Historic Buildings. As you know, these responsibilities have been passed around among various ministries in recent years, and many of us felt that TCP never really fitted with the other activities of the Ministry of Pensions, Incomes and Social Services (the P.I.S.S.), where it last resided.

I am going to set out for you here this evening, and for wider distribution later, my proposals for blowing away the cobwebs of the planning system. Some of these proposals will require legislation, but many of them are merely policy changes, which can be implemented immediately.

As you know, if you want to carry out development in this country you need planning permission, but I want to re-establish the principle which once applied to all cases where the citizen is required by statute to apply for a licence or permission to do something, namely that that licence or permission should always be given unless there are sound and clear-cut reasons for refusal. In other, words, there is always a presumption, indeed a strong presumption, in favour of the requisite permission being granted.

The reasoning behind this is very simple - without the legislative restriction imposed by parliament the citizen would be perfectly entitled to do with his property as he pleased. He should not therefore be deprived of his property rights without good reason, and so planning permission should always be granted unless to do so would cause demonstrable harm to interests of acknowledged importance. That was a principle which was recognised for many years, and it is not so very long ago since government policy guidance said precisely that.

This brings me to the role of the Development Plan in the planning process. Clearly, planning decisions cannot be taken in a vacuum and there must be some policy framework, both at national and at local level, to provide a basis on which planning decisions can be taken. However, the present system has become far too prescriptive and cumbersome. The replacement of County Structure Plans and Local Plans (or Unitary Development Plans) by Regional Spatial Strategies and Local Development Frameworks, far from making things better, has made the whole Development Plan system far more cumbersome and time-consuming. So much effort is wasted in the actual process and in assessing its ‘soundness’ that the actual objective of having a Development Plan at all seems to have been entirely forgotten. Away with all this nonsense, I say! We shall replace it with a simple system, comprising concise ministerial policy statements at the national and regional level. There will then be new County Development Plans which must be compliant with that ministerial policy (supplemented by Local Development Statements where necessary – in more densely developed urban areas). The new County Development Plans will be made by County Planning Authorities and approved by Ministers. We propose to devise a much simpler more streamlined process for the formulation and ministerial approval of these plans.

One factor which has particularly bedevilled the development control system in recent years is Section 38(6) of the 2004 Act (originally Section 54A of the 1990 Act, which was introduced as an ill-considered amendment to the Planning & Compensation Bill when it was going through Parliament in 1991). In my view, Section 70 of the 1990 Act provides a perfectly adequate basis for the determination of planning applications, namely that in dealing with such applications the local planning authority must have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations.

The requirement imposed by Section 38(6) that determinations under the planning legislation should be made in accordance with the development plan unless material considerations indicate otherwise has introduced unnecessary and wholly undesirable rigidity into the planning system, and has made the plan-making procedure an incredibly long drawn-out and painful process, because land-owners and developers see this as their only realistic chance to promote the development of their land, by securing the allocation of their sites for development in the plan.

One of the benefits of repealing Section 38(6) will be to relieve this pressure on the plan-making process, which (combined with the simplified form of Development Plan which we intend to introduce) should make the business of producing a Development Plan much quicker and cheaper, as well as making the planning system more flexible in its day-to-day operation and more responsive to changes in the market and in the economy generally.

My department will in future take a much closer and more proactive interest in Development Plans. We need to impose some discipline on the process so as to ensure that we no longer get plan documents that are thicker than telephone directories, and which attempt to prescribe in detail how and when the developer is to blow his nose.

My intention in ‘vetting’ development plans is ruthlessly to cut out policies and text which seek unnecessarily to re-write ministerial policy guidance already set out in PPSs and Circulars or, even worse, which seek to over-ride those nationally applied policies with a local policy that is inconsistent with them. I am also determined to cut out unduly detailed and prescriptive policies which involve themselves in the minutiae of development and design. Such details are a matter for judgment on their merits in each individual case and they do not need prescriptive policies to assist in their determination.

I also propose to sweep away all supplemental planning guidance and similar material produced by local planning authorities. I shall legislate to provide expressly that any such documents shall be entirely excluded from consideration in the determination of planning applications, and that (where any such continue to exist) they will not therefore be capable of being regarded as a material consideration.

I want to turn now to some of the main policy changes I propose in order to make the planning system fairer and less burdensome. First, I intend to widen considerably the scope of Permitted Development under the General Permitted Development Order, especially for householder developments. The previous government has already had one go at householder development (under Part 1 of the Second Schedule to the GPDO) and quite frankly they made a total mess of it. Far from being more liberal, the new provisions have simply replaced one set of restrictive and ambiguous rules with another. I don’t propose to go into the detail here, but what I have in mind is a much more liberal regime for householder developments and a set of rules which iron out the ambiguities and anomalies and which are easily understandable. I propose to take the same approach to the rest of the GPDO and to rewrite every part of the Second Schedule in a similar fashion.

The power of local planning authorities to remove permitted development rights by means of conditions attached to planning permissions will also be ended. In future, if there are genuine and compelling reasons for restricting permitted development in particular areas, planning authorities will have to use the procedures available under Article 4 of the GPDO, which are subject to ministerial review and confirmation if there are objections.

I also propose to revisit the Use Classes Order so as to produce rather broader classes, especially for commercial uses in town centres. For example, I propose to amalgamate the Category ‘A’ Use Classes in a single class, so that there would no longer be any restriction in changes of use to and from retail, office and catering uses in town centres. We really must leave it up to the market to decide what uses will be commercially viable in particular locations. I do not accept that we have to intervene in a misguided effort to protect primary retail frontages from other town centre uses. Nor should the planning system be used to restrict or control the development of food and drink or leisure uses in town centres. So far as the sale of alcohol is concerned, and the problems sometimes associated with it, that is a matter for licensing authorities; it is not the business of the planning system.

Again, I shall take steps to ensure that it will not be open to local planning authorities in future to restrict the scope of the UCO by conditions attached to planning permissions which seek to restrict changes of use within a particular Use Class. I am not prepared to allow the intentions of parliament in passing Section 55(2)(f) of the 1990 Act to be over-ridden in this way.

I also intend to make a number of important changes to ministerial policy advice. These include subjects such as Housing, Green Belts and development in the countryside. However, the time available this evening does not allow me to deal with these topics in any detail.

It has taken far too long for government to appreciate that we are facing a major housing crisis in this country and, having reluctantly recognised the problem, to grasp the nettle and seek practical solutions to it. It would be wrong to blame the planning system as the sole or even the main cause of this crisis, but it has undoubtedly been a factor in exacerbating the shortage of available housing. This has been compounded by the misguided and largely unsuccessful attempt to use the planning system to produce affordable housing in the absence of public provision.

I am pleased to say that this has been clearly recognised by the present government, and the Treasury has at last been forced to release the purse strings to enable local authorities once again to build social housing so as to tackle the rising tide of homelessness in this country. In practice this simply means that local authorities have now been freed to spend their own money received from the sale of council houses under the right-to-buy in order to replenish their stocks of social housing. The restrictions on the right-to-buy which we have now put in place should ensure that there will be no repetition of the disastrous depletion of the stock of social housing which occurred as a result of the original right-to-buy policy.

There will still be a need for a very large number of houses to be built in the private sector, and it is frankly unrealistic to expect that the numbers required can be built without resort to a significant number of ‘green field’ sites, especially in the south-east of England. All that has been achieved by restricting new build to ‘brown’ land is an overall reduction in house building, and the over-provision of small flats when there is an overwhelming need for family houses, with a decent amount of garden space where children can play. I shall use my supervisory powers over Development Plans to ensure that sufficient housing land is released to provide the homes we need, and I shall reinforce ministerial policy requiring local planning authorities to identify a 5-year land supply for housing (with a 2-year supply of sites ready for immediate development), failing which undesignated ‘wind-fall’ sites will have to be given planning permission (on appeal, if necessary) in order to ensure that house-building targets are met. We do need to predict future housing needs, and we do need to provide the land to meet those predictions. The so-called alternative of “plan, monitor and manage” simply did not deliver the housing the country so badly needs.

Turning to the countryside surrounding our towns, I propose a fundamental review of Green Belts. The original object of our Green Belts was to discourage urban sprawl into the open countryside around our larger towns and cities and to prevent the coalescence of two or more large neighbouring towns. I reaffirm that objective; but two undesirable elements have crept into our Green Belt policies over the years.

First, the Green Belts have been expanded to a far greater extent than was originally intended and to a far greater extent than is necessary to achieve their objective. For example, the Metropolitan Green Belt around London was intended to be about 12 to 15 miles deep. In some places it is now well over 30 miles deep. Our Green Belts now encompass huge areas of land that ought never to have been incorporated in them.

My department will therefore conduct a detailed review of Green Belt boundaries, with a view to reducing substantially the extent of their designated area. This review will proceed on the presumption that subsequent extensions of Green Belts that occurred after initial designation should be reversed unless there are very convincing reasons for those extensions, having regard to the primary objective of the Green Belts. I shall require local planning authorities as part of the Development Plan process to revise Green Belt boundaries in accordance with the conclusions of this departmental review.

In future, there will be a very strong presumption against further extensions of existing Green Belts. There should, on the other hand, be regular reviews of both the inner and outer boundaries of Green Belts to examine the desirability of removing further land from the Green Belt if changed circumstances require this. I shall be revising PPS2 to remove the current advice that Green Belt boundaries should be regarded as fixed for 20 years or more.

The second undesirable element that has crept into Green Belt policy is an entirely unnecessary and inappropriate rigidity in the treatment of development proposals, which seeks to resist all development in the Green Belt unless either it is deemed to be ‘appropriate’ development (such as certain ‘green’ leisure uses) or very special circumstances can be demonstrated. Rather than this somewhat inflexible approach, I propose instead to include guidance within a revised PPS2 which will indicate that within Green Belts development should not be permitted which would prejudice the objectives of the Green Belt and/or which would compromise its openness, but that in determining applications for development in the Green Belt local planning authorities should examine the contribution that the application site in question makes to the Green Belt (in other words, its ‘Green Belt value’). It would thus be the impact of the development on the Green Belt as a whole that would be the determining factor, rather than the ‘appropriateness’ of the development in the Green Belt (in land use terms) or any question of very special circumstances being required to justify the development. I want to emphasise that Green Belts are not and never have been intended to create wholly development-free zones in the countryside.

There are also significant restrictions on development in the open countryside beyond the Green Belt. However, just as there is no ‘blanket’ ban on development in Green Belts, nor is there any such absolute ban on development in other rural areas. Clearly, unrestricted development in the open countryside would be unacceptable, but the policy approach up to now has been unduly restrictive, and a more balanced approach to such development proposals is therefore required.

There has in the past been strong resistance to new housing in the countryside, with certain very limited exceptions. There is clearly a need to ensure that the rural landscape is not ruined by sporadic and inappropriately located development in the open countryside. Subject to that proviso, however, I see no objection in principle to allowing small housing developments located adjacent to or well-related to existing village development boundaries, especially where these are designed to meet specific local housing needs.

Equally, I see no objection to single dwellings (whether newly built or converted from existing buildings) elsewhere in the countryside, provided that they are located so as to minimise their impact on the landscape. The advice in PPS7 will be revised accordingly, and development plan policies will also have to be modified to admit of a more flexible approach to this issue. It follows from what I have said that there should also be a much more flexible approach with regard to agricultural occupancy conditions. The revised approach to new homes in the countryside should make such conditions largely unnecessary in future, and most existing occupancy conditions could then be removed, unless there are compelling and overriding reasons for their retention in particular local circumstances.

The need for diversification of the rural economy in the face of the continuing agricultural recession has not hitherto been adequately addressed by the planning system. A much more flexible approach is required to enable farmers to develop their land and buildings for alternative uses where it is no longer viable to farm all of the land, or where it is no longer practicable to utilise agricultural buildings for their original purpose. Leisure and tourism developments (including holiday accommodation and provision for seasonal camping and caravanning) and small-scale industrial and business uses should be much more readily allowed where such developments would not significantly affect the rural landscape. Small-scale residential developments within the ‘envelope’ of such farm complexes may also be acceptable. I propose to introduce clear advice to this effect in a revised PPS7.

Time does not permit me to deal this evening with the changes I propose to make to the advice set out in PPS4. Suffice it to say that I remain unconvinced as to the practicability or indeed the appropriateness of attempting to preserve the vitality and viability of town centres through the mechanisms of the planning system. This is a topic to which I shall return on a future occasion.

The final main topic I want to touch on this evening is the subject of conservation, as it applies to Listed Buildings and to Conservation Areas. We all greatly value our architectural heritage, but it is important that the owners and users of buildings protected by these formal designations should not be unduly fettered in their use of their property. A fair balance must be struck between preservation on the one hand and, on the other, appropriate change to ensure the continued beneficial use of such buildings. I absolutely reject any notion that we should preserve our historic towns and ancient buildings in aspic and prevent any change in the future.

Both the listing of buildings of architectural or historic importance and the designation of conservation areas are valuable means of ensuring the preservation of our cultural heritage in built form, but it is important that their value should not be undermined by over-use. I fear that we may have listed far too many buildings, especially in the Grade II category, and that there has also been over-use of conservation area designations or extensions covering areas of townscape that do not really deserve such designation. For that reason, I propose to embark on an immediate review of the list of historic buildings with a view to retaining on the list only those buildings that genuinely merit inclusion and whose retention is of real importance. As a result of this exercise, I would expect at least a third and possibly up to half of all Grade II listed buildings to be de-listed. Grade II* and Grade I listed buildings will also be included in the review, but de-listing is much less likely to occur in those cases, although regrading may be considered.

The listing of modern buildings can cause particular difficulties for their owners and occupiers, and can prevent or inhibit necessary alterations to meet changing needs. For this reason, I am not convinced that it is appropriate to list modern buildings, and I also doubt whether an objective judgment of their true architectural value can be made until they can be seen in their historical context at some distance in time after they were first built. For that reason, no buildings will be listed in future less than 50 years after their original construction, and I propose in the meantime to de-list those buildings currently on the list which are less than 50 years old, with the possible exception of any such which are now more than 40 years old and whose continued listing is clearly justified on architectural or historic grounds. This would avoid the de-listing of certain buildings only to have them re-listed a few years later.

I also propose to relax the controls over alterations to listed buildings. Many owners and occupiers of listed buildings are under the impression either that the prohibition on altering a listed building without consent applies only to the exterior, or that this protection applies only to those features expressly mentioned in the listing description. In relation to Grade II buildings only, I propose to change the law so as to bring it into line with public perceptions. In future, therefore, listed building consent will no longer be required for interior alterations to Grade II listed buildings unless such alterations would materially affect the basic structure of the building or would affect any internal feature which is specifically mentioned in the listing description. However, control over internal alterations will continue to apply to Grade II* and Grade I listed buildings as it does at present.

In order to assist owners of listed buildings to determine whether listed building consent may or may not be required in particular circumstances, I propose to introduce provisions similar to the existing procedures for lawful development certificates. The non-availability of such certificates in respect of works to listed buildings is an anomaly that has long been in need of reform.

The designation of conservation areas has hitherto been primarily in the hands of local planning authorities, and I fear that it is political pressure at the local level that has led to over-designation. I therefore propose that in future the designation of conservation areas will be solely a ministerial responsibility in the same way as the listing of historic buildings. As soon as the necessary legislative change is in place I shall embark on a complete review of conservation areas throughout the country, with a view to de-designating those areas or parts of areas that do not genuinely merit conservation area status on objective criteria.

These proposals are by no means the only changes to the planning system that my department intends to introduce, but they represent the most urgent reforms with which we intend to press forward. There are others, such a general liberalisation of the advertisement control regime, which is far too restrictive and presents substantial and quite unnecessary difficulties for the advertising industry.

There is one other very important reform which I should also mention. This relates to the Planning Acts themselves. Although successive governments have purported to ‘reform’ or ‘modernise’ planning legislation over the years, and there have also been several consolidating Acts, the overall effect has been the opposite of what was intended, and the legislative framework has become increasingly cumbersome as various accretions have accumulated, like barnacles growing on the hull of a ship. If I may pursue that nautical simile, the time has come to give the bottom a thorough scrape. We must go right back to first principles and completely re-write the primary legislation so as to remove anomalies and ambiguities and generally to simplify this complex body of legislation. I am not talking about tinkering with the detail – we must give this legislation a thorough overhaul. We must rewrite our planning legislation completely from scratch. I have already given instructions for this process to begin within my department, and Parliamentary Counsel to the Treasury will be instructed as soon as a full brief can be prepared.

The same applies to the huge raft of subordinate legislation that has been made under the Planning Acts. The drafting of the General Permitted Development Order, for example, is in dire need of complete revision. I have already indicated my intention of simplifying the rules on permitted development, but I intend that the new GPDO should also iron out all the anomalies and ambiguities in the existing Order with which planning practitioners are all too depressingly familiar. Equally, I see no reason for umpteen different versions of the Inquiries Procedure Rules. I intend to replace them with a single set of rules, with such minor variations as may be needed to cater for the special requirements of particular types of inquiry. The opportunity will also be taken to fill in one or two lacunae that have been identified in these rules regarding appearances by various parties at the inquiry and the documents they are required to serve before the inquiry.

Bearing in mind the disappointing results following previous promises of planning reform, those involved in planning and development might be forgiven for being a little cynical about the proposals I have announced, but I assure you, ladies and gentlemen, that this is no cosmetic exercise. This time we are going right back to first principles. It may involve the slaughtering a few sacred cows, and I can already hear the screams of agony from certain special interest groups, who have become accustomed to regard the planning system as a useful tool for resisting change. But such protests will not deter us from our intent to carry through these reforms, so as to produce a planning system that is truly responsive to the needs of society, and which will produce the development that we need, in the right place and at the right time, in order both to sustain our economic position and to provide decent homes for our citizens.

(We leave it to readers to guess whether this speech was greeted with loud and prolonged applause or with stunned silence.)

© MARTIN H GOODALL