Wednesday, 21 September 2011

Whose fault is it?

Much heat is being generated over planning reform and the government’s determination to promote economic growth by easing the planning process.

There can be no doubt that the planning system is slow and bureaucratic, both in its plan-making procedures and in the development control process (or development management, as some people now prefer to call it). So whose fault is this?

The government blames the planners, and it is true that some planning officers can be rather bureaucratic and negative in their attitudes and in the way they handle planning applications. A recent comment on the RTPI Linked-in discussion forum drew attention to a demand for a Design and Access Statement to accompany a retrospective application for approval of a chimney-flue! It is this sort of nonsense that gives planners a bad name.

But the underlying problem is the legislation, particularly the detailed subordinate legislation which governs development control procedure. Ultimately, it is the politicians who are to blame for this. It is they (or civil servants acting on their behalf) who have dreamed up the labyrinthine complexity of the current system and the convoluted procedures which local planning authorities are now required to go through in order to produce a Development Plan and which developers are required to negotiate in order to obtain a planning permission.

Governments of different political complexions have purported to ‘reform’ the planning system on a number of occasions over the past 20 years or so, but each attempt at alleged ‘reform’ has only served to further complicate an already complex system. Let there be no doubt about it; the blame for this lies fairly and squarely at the feet of the politicians. They might claim that they were badly advised by their civil servants, but ministers (both past and present) must accept ministerial responsibility for the resulting mess, and back-bench MPs must also accept their share of responsibility for voting this legislation through.

Politicians might plead in mitigation that they were responding to pressure from the electorate to close alleged loop-holes or to dot ‘I’s and cross ‘T’s, but the result has been entirely counter-productive and has led to a planning system which is weighed down with the bureaucratic burden which has been placed on it. The Localism Bill, quite frankly, will do nothing to lighten the load, and in fact by introducing an extra layer of ‘neighbourhood planning’ it will add further complication to an already over-complex planning system.

Under the 1947 Act, the Development Plan consisted simply of a County Development Plan for each County (or County Borough), supplemented by Town Maps in larger towns and cities. There were legitimate criticisms of what was often referred to as ‘zoning’, and so we moved on in the 1970s and 1980s to a two-tier Development Plan system, comprising a County Structure Plan (which was intended to be purely strategic in its approach) and Local Plans produced by District Councils, which filled in the details. It seems to have been quickly forgotten that Local Plans were originally intended simply to replace Town Maps. Thus ministerial advice indicated that LPAs need not produce Local Plans for their whole areas, but should do so only where these were considered essential. Later, LPAs were urged to produce Local Plans for their whole area, and this was then enforced by legislation.

What really screwed up the development plan system was the introduction in 1991 of Section 54A of the 1990 Act (now replaced by Section 38(6) of the 2004 Act) which required that where a determination under the Planning Acts had to take account of the Development Plan, it was to be made “in accordance with the Development Plan, unless material considerations indicate otherwise”. This had the immediate effect of making Local Plan development allocations essential to the future development of land, particularly for housing, and so local plan inquiries became increasingly lengthy as developers and their opponents fought over the development proposals and policies in the Local Plan. This was in stark contrast to the previous ministerial policy set out in Circular 14/85, which had boldly stated that “the Development Plan is one, but only one, of the material considerations” which had to be taken into account (in accordance with what is now Section 70 of the 1990 Act). Another complicating factor was the tendency of LPAs to throw every possible development control policy into the Local Plan, thus making them as thick as telephone directories, in contrast to the comparatively slim size of the former County Development Plans. Such over-prescriptive policies are entirely unnecessary.

A third element was then introduced in the development plan system in the form of regional plans. These started life as ‘Regional Planning Guidance’, a species of ministerial policy guidance akin to PPGs, but they were then transmogrified into statutory “Regional Spatial Strategies” (later simply called “Regional Strategies”), which the present government now wants to abolish. Whatever form they took, these regional policies did have the advantage of clearly identifying the level of housing need which would have to be met by the development plan. These figures were not just a central government diktat, as the present government seeks to pretend, but were based on sound and thorough research. With or without a regional strategy of some sort, that need still exists, and the statistics which demonstrate that need are there for all to see.

The 2004 and 2008 Acts greatly complicated the development plan system by replacing Local Plans with a much more complicated ‘Local Development Framework’ (LDF). Instead of a single Local Plan, comprising a written statement and a proposals map, LPAs are required to produce a Core Strategy (involving a convoluted process of consultation, ‘community involvement’ and the certification by a Planning Inspector of the ‘soundness’ of the Core Strategy after public scrutiny, involving both written submissions and hearings) followed by a suite of ‘Development Plan Documents’ (DPDs). The LDF will not be complete until all those DPDs are in place, and progress so far has been painfully slow. Only 30% of LPAs in England have so far got an adopted Core Strategy, but even this is no more than the first stage in producing a comprehensive LDF. Much of the development control policy formerly set out in Local Plans will be found in the DPDs, on which those authorities which have a Core Strategy in place have still made only limited progress in many cases. Thus there are very few, if any, LPAs which currently have a complete LDF in place, and it is likely to be some years before anything like complete plan coverage is achieved.

Local authorities are not to blame for this wholly unsatisfactory state of affairs. They have limited resources (which are now being squeezed more than ever) and yet have been required to start the plan-making process again from scratch. Responsibility for this state of affairs lies, once again, in the hands of ministers and their parliamentary supporters, who have imposed this impracticable system on local government. It is the politicians, not the planners, who are to blame for this.

In addition to the unnecessary complexities of the development plan system, we are also afflicted by a cumbersome and time-consuming development control system. The last government must take a large measure of the responsibility for this added complication. Applications for planning permission, especially for outline permission, used to be quite straightforward. A relatively short application form was accompanied by a site plan and (in the case of an application for full permission) drawings of the development for which approval was sought. The LPA could ask for further information, but in the meantime the application was placed on the planning register and processing of the application would proceed.

Now we have onerous requirements, which call for a whole raft of information (much of it unnecessary) before the application can even be ‘registered’. Details of what is proposed are required even for an outline application, even where the landowner who is seeking the outline permission may have only a very vague idea of the precise form of development which a future developer might wish to build. There is a wholly unnecessary requirement for a ‘Design and Access Statement’. Such a document might be useful for really large-scale developments, but these would in any event usually have their own development brief and, on very large sites, a Master Plan, so the D&A statement could probably be scrapped altogether.

We now also have a standard application form (1APP) for use throughout the country. In principle, this might seem to be a good idea but, as I predicted when the form was being designed, the form ended up by being far too complicated. The temptation to throw in all sorts of requirements was too great for the bureaucrats to resist. The problem was compounded by the publication of national and local checklists of information which the planners require before the application can even be registered. Much of this information is irrelevant to particular applications or is simply unnecessary, but lay readers would not believe the tussles planning professionals have with planning officers over the provision of this information. This is one area where planning officers do themselves no favours, and it is probably the greatest single factor in creating the perception which the government is keen to encourage that it is the planners who are delaying or preventing development. Scrapping these information requirements, including the need for a D&A statement, would be the greatest single improvement which could be made to the development control system, and would do more than anything else to remove the perception of obstruction and delay on the part of planning officers. LPAs would still be able to call for extra information when needed, but this should only arise once the planning application is in the system and only if the need for such further information becomes clear during the subsequent processing of the application. There should be a right of appeal (as there always used to be) against an LPA’s insistence on further information being provided.

Simplification and streamlining of the development control system can be achieved relatively easily by revised subordinate legislation, and the government is currently consulting on this. One can only hope that the government’s determination to achieve economic growth through development will be carried through to these procedural mechanisms as an aid to promoting development.

Simplification of the development plan system would require further primary legislation, and it is a great pity that in their rush to introduce the very unsatisfactory Localism Bill, the government has lost the opportunity, at least for the time being, of introducing a more fundamental reform of the development plan system so as to produce a far simpler form of development plan which could be prepared and adopted much more swiftly than the complicated Local Development Frameworks.

So perhaps this short piece may help the RTPI in their ‘myth-busting’ campaign, which seeks to give the lie to the government’s assertion that it is solely the planners who are preventing or delaying development. The solution lies solely in the government’s hands; it is they who must revise primary and subordinate legislation to streamline both the plan-making process and development control procedures.



Anonymous said...

A very good piece, thanks Martin.

It really has shocked me how easily the important debate about planning has descended into a playground slanging match - led by Ministers. I suspect that their public affairs advisers (who know little about anything except spin and the Westminster village) have led them to believe that the best way to create the conditions change is to create strawmen that they can hurl playground insults at.

Perhaps mature dialogue and a little more reflection would be a better approach - but I shan't be holding my breath.

anthony gilbert said...

An excellent piece. The issue of LPAs asking for too much information before they will even register an application needed raising. Clients are often required to provide information which is not necessary at application stage, and which could be added later as a condition. If an application is subsequently refused,it results in wasted time and money for the client.

PGH said...

What an excellent summary of the current state of the planning system. I have long held the view that the problems in the development plan system stem directly from the ill-thought-out addition of Section 54A to the 1990 Act. The present overcomplication in the development control system has more numerous causes, but one particular one not highlighted here is the 'target' culture instilled by the last Labour government whereby planning authorities' performances (and until recently funding) were directly linked to the proportion of applications decided within the 8 week period. This led directly to local authorities' deliberate failure to register applications until every single box is ticked (including in many cases applicants having to provide completed Section 106 obligations even if the application is subsequently refused), to the disappearance of negotiation during applications, and to the culture of refusing applications that could be improved by simple amendment simply because the 8 week period was about to expire. Sadly though planning authorities no longer have their funding determined by their performance against these 8 week targets, many still adhere unnecessarily to these targets with all the disadvantages outlined above. Oh for a return to the days when one could submit an application and negotiate it without being under such time pressure. To those who would retort that this simply adds to delays in the planning system, there would still be the right of appeal if the application was not determined within the 8 week period, and in any case the emphasis on the 8 week targets has not shortened the overall planning process, since so much time now has to be spent pre- and post-application (discharging the ever increasing number of conditions).

Martin H Goodall LARTPI said...

I entirely agree with PGH. He/she has correctly identified several points which I omitted from this post, but which are significant irritants to applicants and their professional advisers.

As I have mentioned before, the negative perception of the planning system which the business sector now has (to which the Prime Minister has repeatedly referred) is attributable primarily to these procedural issues, rather than to the refusal of planning permission and resultant appeals. Simplifying applications and information requirements and streamlining the processing of applications will do more to dispel the negative image that the planning sytem currently has than the more general liberalisation of planning policy (desirable though this is for its own sake).