Monday, 24 September 2012

Pickles says “Sue the Council” !

I missed Pickles’ performance on BBC’s Sunday Politics Show yesterday, but I nearly fell off my chair laughing when I read that he had advised disappointed would-be conservatory builders to sue their local councils if they prevent them from building their longed-for extensions by making an Article 4 Direction.

Uncle Eric doesn’t seem to be aware that it is a very well established principle of public policy, which is rigorously enforced by the courts, that local planning authorities cannot be sued for the manner in which they use their development management powers. As a planning lawyer, I quite frequently hear people who have been thoroughly messed about by a local planning authority declare that they are “going to sue the council for this”. I just have to explain patiently to them that they can’t.

Actually, I think I know what Pickles had in mind. If an Article 4 Direction is made which removes certain permitted development rights from a property, a person who then makes a planning application for a development which would have been permitted development in the absence of the Article 4 direction has a right to compensation if that planning permission is refused. However, the right to claim compensation is hedged around with certain restrictions. First, compensation can only be claimed if the planning application is made within 12 months from the date when the Article 4 Direction takes effect. Secondly, the local planning authority can avoid having to pay compensation altogether if they give 12 months’ notice before the Article 4 Direction comes into force.

Another point to be borne in mind is that the amount of compensation that can be recovered may not be all that great. The measure of compensation is the capital value the property would have had if the planning permission had been granted, compared with the capital value of the property without the permission. In the case of the sort of extensions we are talking about, the difference might not amount to very much. The compensation does not include any element for the expenses incurred by the applicant in attempting to obtain planning permission or for any other consequential losses, and certainly nothing for wounded feelings, hurt pride and general annoyance.

Officers of Richmond LBC were recently told by their elected members to go through the planning laws with a fine tooth comb to find a way of avoiding enlarged extensions being built in their area. In fact they won’t have had to look very far. If local planning authorities really don’t like the idea of an amended General Permitted Development Order allowing significantly larger extensions over the next few years, then there is nothing to stop them making Article 4 Directions, whether Uncle Eric likes it or not. The risk of having to pay compensation to disappointed home owners deprived of their opportunity to build conservatories and other extensions is a factor which they may have to take into account. This may deter some authorities from making Article 4 Directions, but others may think it a risk worth taking.


Friday, 21 September 2012

Simplification or complication?

As readers are no doubt aware, a local planning authority is required by Article 31 of the DMPO, when granting planning permission, to give a summary of the reasons for the grant of permission and a summary of the policies and proposals in the development plan relevant to the decision.

An amendment has now been made to Article 31 which requires the LPA to add to this note a statement explaining how, in dealing with the application, the authority has worked with the applicant in a positive and proactive manner based on seeking solutions to problems arising in relation to dealing with a planning application [!]

According to a letter from De-CLoG’s Chief Planner, Steve Quartermain, to Chief Planning Officers, this is in line with paragraphs 186-187 of the NPPF, which advise that:

“186. Local planning authorities should approach decision-taking in a positive way to foster the delivery of sustainable development. The relationship between decision-taking and plan-making should be seamless, translating plans into high quality development on the ground.

“187. Local planning authorities should look for solutions rather than problems, and decision-takers at every level should seek to approve applications for sustainable development where possible. Local planning authorities should work proactively with applicants to secure developments that improve the economic, social and environmental conditions of the area.”

Quartermain suggests that in the majority of cases it will be sufficient for the authority to include a simple statement, confirming that they have implemented the requirement in the NPPF. However, bearing in mind the number of cases that have reached the High Court based on a challenge to the LPA’s compliance with the requirement to summarise their reasons for the grant of permission, this seems to be offering yet another hostage to fortune. What the amended Article 31 requires is that the LPA should explain how they have worked with the applicant in a positive and proactive manner based on seeking solutions to problems arising in relation to dealing with a planning application. A simple assertion that they have complied with paras 186 and 187 of the NPPF would not appear to me to suffice for this purpose.

I cannot see what has been gained by this amendment. It seems to be an unnecessary complication which is of no assistance to anyone. Which bright spark dreamed up this daft idea? I sometimes wonder whether the denizens of De-CLoG live on the same planet as the rest of us.


Extending the life of planning permissions

One of the ill-considered amendments to planning legislation introduced a few years ago was the removal (in England, but not in Wales) of the ability to extend the life of a planning permission by applying under section 73 of the 1990 Act to vary the condition imposed under section 91 or 92 of the Act setting a time limit within which the planning permission must be implemented. There has always been a wide range of perfectly good reasons why it is not practicable to commence development within the time limit originally specified, quite apart from the obvious economic factors which have arisen in recent years. Use of section 73 to extend the life of a permission in such circumstances was a convenient way of dealing with the problem, making life easier for both the developer and the LPA. If the LPA felt that such an extension was inappropriate (for example because of changed circumstances since the original permission was granted) they were entirely free, subject to the usual right of appeal, to refuse the application to extend time in this way.

The government was eventually persuaded in light of the worsening economic situation to relax the prohibition on extending the life of planning permissions, but rather than simply restoring the right to apply to vary the time condition under section 73 without strings, the government amended the DMPO to enable this to be done solely in respect of permissions granted before 1 October 2009 (where, for obvious reasons, the time limit had not already expired and where development had not begun). However this did not apply to outline planning permissions; nor did it apply where the development was permitted to take place in phases and one or more of the phases had already been implemented, but the developer was not in a position to submit reserved matters applications for the remaining phases within the time limit specified in the original permission. In this case, because the development had already commenced, the developer could not extend the time limit for submitting reserved matters applications and there was no alternative to submitting an entirely fresh planning application, with all the consequent costs, inconvenience and delay.

As announced in the flurry of initiatives unveiled earlier this month, the government has now further amended the DMPO so that, with effect from 1 October 2012, an application can be made to replace an existing planning permission where the original permission was granted before 1 October 2010, which gives developers an extra year compared with the previous concession. This is still restricted to developments where building has not begun and where the time limit for commencement has not expired. However, in applying for a replacement permission it is unnecessary to re-submit all the plans and drawings, and there is no requirement to submit a fresh design and access statement, nor is there a need for full consultations.

This may not entirely solve the developer’s problems. The adoption of a CIL charging schedule between the time when the original permission was granted and the time when the replacement application is determined could be a complicating factor, not to mention the possibility that planning obligations under section 106 might have to be revisited in view of declining viability of the project in the current market.



Update [12.11.13] :

De-CLoG has now announced that they will definitely not be renewing powers to extend the life of planning permissions. The ability to extend PP that had been removed (in England) by the 2008 Act was temporarily restored as a result of the financial crisis. It was extended by a further year, but has since lapsed. This latest announcement confirms that extension of time for the commencement of development has now been permanently removed. The thinking behind this seems to be a wish to push developers into starting development, rather than sitting on planning permissions.

Wednesday, 19 September 2012

The new Planning Minister

Journalists in various media were quick to comment on the expected impact of the new planning minister, Nick Boles. He certainly seems to have ‘form’ so far as his views on the planning system are concerned, although it remains to be seen whether the shackles of office may in practice blunt the apparent thrust of the ideas he has expressed in the past.

Boles is a relative newcomer to parliament, but is nevertheless credited with having the ear of the PM, having been the first director of the right wing think tank ‘The Policy Exchange’, which apparently enjoys prime ministerial approval. Before entering parliament he had been a councillor on Westminster City Council, serving a single 4-year term from 1998 and 2002 where, between 1999 and 2001, he served as Chair of the Housing Committee.

Like other right-wing members of his party, Boles is opposed to a central government role in planning and housing. After his appointment, video clips were replayed repeatedly on television showing Boles addressing a Tory meeting in 2010 when he was heard to say, “I mean, bluntly, there comes a question in life. Do you believe planning works? That clever people sitting in a room can plan how people’s communities should develop, or do you believe it can’t work? I believe it can’t work, David Cameron believes it can’t, Nick Clegg believes it can’t. Chaotic therefore in our vocabulary is a good thing.”

As a minister, Boles may find that he has much less freedom of action and certainly much less opportunity to air his own views than he enjoyed as a back-bencher. Some journalists were inclined initially to see him as Cameron’s man at De-CLoG, but I have no doubt that the denizens of Eland House are already busy getting their new planning minister house-trained. He is, after all, working under a Secretary of State who is notoriously unenthusiastic about the Treasury-led dash for growth through development, and there is already a sense that the apparent momentum created by the initial headline-grabbing announcements from Downing Street a couple of weeks ago is slackening, as De-CLoG sets about consultation exercises on the proposed changes, with no guarantee that all of them will necessarily be put into practice.

Meanwhile, there is no sign yet of the promised Bill which is to speed up the planning system. Both houses of parliament are currently in recess, and neither house will sit again until October. Already the timetable that George Osborne was talking about at the beginning of this month is slipping, and details of the other measures that were announced are emerging only slowly and tentatively. Once again, it can be seen that no matter how sternly the PM frowns and how emphatically he enunciates his intentions, delivery simply doesn’t match the rhetoric.


Wednesday, 12 September 2012

Regional strategies – not dead yet

In case you were under the impression that Regional Strategies had been abolished, the fact is that they haven’t, at least not yet. It is now more than two years since Eric (‘I’m still here’) Pickles announced his absolute determination to sweep away this hated tier of Nu-Labour policy-making but, unfortunately for Uncle Eric, m’learned friends put a bit of a spanner in the works.

What with the Cala Homes litigation and the ticklish business of tip-toeing through the minefield of strategic environmental assessment, the government still isn’t in a position to deliver the final coup de grace to regional strategies. For the time being, they remain a part of the development plan, and so effect must be given to them in accordance with section 38(6) of the 2004 Act unless material considerations indicate otherwise. The Secretary of State’s intention to abolish the regional strategies is clearly capable of being such a material consideration, and he would like LPAs and planning inspectors to act as though it had already happened, but ultimately this is out of his control, and decision makers can decide for themselves how much weight they give to this material consideration.

The legal pitfalls of abolition have been complicated by a ruling the European Court of Justice (Inter- Environnement Bruxelles ASBL v Region de Bruxelles-Capitale), which residents in Brussels won in March against the Belgian government, relating to the interpretation and application of the European strategic environmental assessment directive. This has prompted De-CLoG (no doubt on their lawyers’ advice) to re-consult on the environmental effects of abolishing regional strategies, adding at least another 12 weeks to the timetable. This won’t be completed until late October, following which the results of the consultation will then need to be carefully considered if further legal challenges are to be avoided. The government originally insisted that their strategic environmental assessment of the impact of abolishing regional strategies was entirely ‘voluntary’, but their lawyers clearly didn’t agree. There are several parties that seem ready to launch High Court proceedings on this issue if the government is thought to have got it wrong again.

In fact, the potential legal problems associated with the cancellation of regional strategies seem to be multiplying. The possibility of the government's intentions being legally challenged and ultimately being found not to be compliant with European environmental directives should not be ruled out. It may be premature to start rehearsing the funeral oration over the corpse of the regional strategies just yet. The government could conceivably be forced into some kind of U-turn which would involve regional strategies being retained in some form after all, although this would require an amendment to the Localism Act. This could all take another year or two to unravel.

Irrespective of the statutory framework, there is a clear need for some sort of strategic overview at some higher level than that of the LPA. The duty to co-operate introduced in the Localism Act is no substitute for this, although the robust approach that PINS seems to be taking on this score in examining the soundness of core strategies may force councils to take this duty more seriously. Whether by formal or informal means there needs to be some mechanism for a wider view to be taken, at the County level at the very least and preferably at a regional level. The government will no doubt be reluctant to be seen to legislate to reverse their previous policy of abolishing 'prescriptive' regional strategies, but I can foresee a possible revival of regional planning as an element in the plan-making process, despite the government’s fervent wish to see the back of it.

Meanwhile, access to national (and regional) data is essential for proper plan making, even at the local level, and government co-operation in facilitating this may be a way forward, leading perhaps to greater regional co-ordination than was originally envisaged.


Friday, 7 September 2012

Planning changes – ministerial statement

First we have ‘government by press release’, which was what we were getting yesterday morning. The next stage is ‘government by ministerial statement’, a slightly more detailed explanation of the government’s intentions but still full of self-congratulatory hyperbole and short on detail, but slightly more reliable as an indication of what is proposed than the spin doctors’ initial briefings and the resulting news stories, some of which were quite misleading as to what is actually in prospect. The Secretary of State made a statement in the Commons yesterday afternoon. But the real meat will only emerge when drafts of the new primary and subordinate legislation and ministerial policy guidance are published over the coming days and weeks.

In the meantime, the following is a brief précis of selected parts of the ministerial statement Pickles made to the Commons on Thursday 6 September, together with some initial comments.

Reducing planning delays

Pickles said that local planning authorities (and local communities) have a responsibility to meet the need for development and growth, and to deal quickly and effectively with proposals that will deliver homes, jobs and facilities.

The government proposes to to legislate “to allow applications to be decided by the Planning Inspectorate, if the local authority has a track record of consistently poor performance in the speed or quality of its decisions”. Precisely what criteria will trigger this is as yet unclear. The justification, however, is that Planning is a quasi-judicial process, and that justice delayed is justice denied; it is unfair to all parties for local planning authorities simply to fail to make timely decisions on a planning application – creating uncertainty both for applicants and local residents.

The government will also require more transparent reporting of council performance on planning, and (through the Local Government Association) wants to increase the use of Planning Performance Agreements for major schemes – which commit both applicants and planning authorities to a clear timetable for determining proposals.

In addition, the government intends to give Planning Inspectors more power “to initiate an award of costs in planning appeal proceedings”, where it is clear that an application has not been handled as it should have been with due process. The circumstances in which this power would be invoked is as yet unclear. I have long argued that a straightforward financial discipline would be imposed on both sides in an appeal if costs were normally to follow the event (i.e. loser pays the winner’s costs). It would be simpler from every point of view.

The government believes that swift determination of appeals by the Planning Inspectorate is also of critical importance, so they will consult shortly on options to speed up planning appeals – and for a new fast-track procedure for some small commercial appeals. Pickles has also instructed the Planning Inspectorate with immediate effect to divert resources to prioritise all major economic and housing related appeals, to ensure applicants receive a response in the quickest possible time. (So it’s hard luck if your pending appeal doesn’t happen to come into one of those categories.)

Pickles has also extended a measure that allows developers the chance to seek additional time to implement a planning permission before it expires, for an additional year.

The government intends to review the thresholds for some of the existing categories in the major infrastructure approvals regime, and also to bring new categories of commercial and business development into this regime – making it possible for such schemes, where they are of sufficient significance, to be considered and determined at a national level. As I mentioned yesterday, this means that certain developments which are not for the provision of infrastructure as such (e.g. some major housing schemes) will be dealt with as though they were major infrastructure projects. It also means that some important decisions will thus be taken out of the hands of LPAs altogether. What price ‘localism’ now?

The government is also hoping to extend the principle of a one-stop-shop for non-planning consents for major infrastructure, and to amend the Special Parliamentary procedures which apply to major infrastructure.

Reducing the cumulative burden of red tape

Some slightly wide-of-the-mark reporting in the past couple of days has given the impression that the requirement to provide affordable housing is to be removed altogether. This is not what Pickles has actually announced. What is proposed is amending legislation, to be effective in early 2013, which will allow any developers of sites which are unviable because of the number of affordable homes, to appeal with immediate effect. The Planning Inspectorate will be instructed to assess how many affordable homes would need to be removed from the Section 106 agreement for the site to be viable in current economic conditions. The Planning Inspectorate would then, as necessary, set aside the existing Section 106 agreement for a three-year period, in favour of a new agreement with fewer affordable homes. In the meantime, the government is seeking to encourage councils to take the opportunity before the legislation comes into effect to seek negotiated solutions where possible.

Alongside this, the Government is also consulting on legislation that would allow developers to renegotiate non-viable Section 106 agreements entered into prior to April 2010. Thus it is not being proposed that new developments now coming forward for permission will be exempted from affordable housing requirements or that the government is going to bring about any general relaxation of the requirement to provide an element of affordable housing. What we have instead is a rather weak and wishy-washy proposal for a ‘review’ led by Government, working with interested parties, to ‘rationalise’ the levels of affordable housing, which are currently very variable as between one part of the country and another. The hope is that this review will lead to some sort of ‘plan of action’ by next spring, including possible legislation if a significant rationalisation cannot be agreed.

[Under the heading of ‘rationalising red tape’ there is total silence on the need to simplify and streamline the planning application process, by removing the requirement for design and access statements and scrapping or considerably reducing information requirements in local validation checklists. There is an urgent need to sort out the problems so often encountered in getting planning applications registered, and this would do more than any other reform to dispel the current dissatisfaction with the development management process.]

[UPDATE: In writing this, I overlooked the fact that there is an ongoing consultation on suggested changes to the DMPO which will to some extent address this issue. However, it is not proposed to scrap D&A statements, nor are local validation checklists to be significantly trimmed. The consultation ruled out further primary legislation, but that was before the current proposal for a new bill emerged. There is an urgent need to revise section 62(3) of the 1990 Act and Artcle 29 of the DMPO so that the LPA is no longer the sole arbiter of whether a planning application is valid. The right to appeal to the Planning Inspectorate where the LPA is holding up an application due to not having been provided with all the information demanded should be restored.]

Supporting locally-led development

The government has previously made clear the importance they attach to delivering new large-scale settlements. Pickles has therefore signalled a greater use of call-ins and the recovery of appeals for ministerial decision for major new settlements with larger than local impacts. This seems to be the opposite of locally-led development and would seem to presage large-scale development being forced on reluctant LPAs by ministerial diktat.

On the other hand, further bribes are to be offered to LPAs to get them to accept more development in their own back yard. This includes the New Homes Bonus, Community Infrastructure Levy contributions towards local infrastructure, business rates discounts and business rates retention from April 2013 (i.e. more of the same).

Pickles made a point of reiterating the government’s commitment to safeguarding Green Belt and other environmental designations, in accordance with the NPPF, but he points out that councils can review local designations to promote growth. The government wants to encourage councils to use the flexibilities set out in the NPPF to tailor the extent of Green Belt land in their areas to reflect local circumstances. Where Green Belt is considered in reviewing or drawing up Local Plans, the government “will support councils to move quickly through the process by prioritising their Local Plan examinations” (whatever that means). There is considerable previously developed land in many Green Belt areas, which could be put to more productive use. The government wants to encourage Councils to make best use of this land, whilst protecting the openness of the Green Belt in line with the requirements in the NPPF. This is a slightly more convoluted explanation of the suggestion put forward by George Osborne last Sunday which caused such a fuss at the time.

The government clearly recognises the need to do something about the Green Belt, which needs reviewing on a much more flexible basis, but they are clearly running scared of the hornets’ nest they could stir up if this is perceived to be an ‘attack’ on the Green Belt.

Helping homeowners improve their homes

This is the bit that caused the greatest amount of excitement in the press yesterday. De-CLoG will consult shortly on changes to increase existing permitted development rights for extensions to homes and business premises in non protected areas but only for a three-year period. Some details have already been revealed, but the full consultation document is still awaited.

Re-use of office space

The government is going to introduce permitted development rights to enable change of use from commercial to residential, but will provide the opportunity for authorities to seek a local exemption where they believe there will be an adverse economic impact. This is in effect a revival of the previous proposal, abandoned in July in face of widespread opposition from LPAs. It seems the government is now prepared to return to the fray, hoping to draw off opposition by giving LPAs the possibility of an opt-out.

Even this ministerial statement does not cover all the changes that are in the pipeline, and mixed messages are emerging about the timetable for the promised legislation. We were led to believe a few days ago that this was going to be introduced within the next week or two and would be rushed through parliament before the end of October. Now it seems that this the Bill may be several weeks away, and the glib talk about ‘fast-tracking’ it though parliament has strangely abated.


Locally listed buildings (3)

Hugh Winfield, who is Archaeologist and Historic Environment Record Officer with a local planning authority, has contributed the following thoughts to this discussion:

“I was forwarded a link to your blog by one of my managers as we are currently working on a major overhaul and update of our Local List. The idea that, because Local Listing gives no protection, we should not bother compiling such lists is one that I have come across on a regular basis and I have dealt with by saying the following:

"The intention behind compiling Local Lists is to raise awareness of the importance of the assets covered and provide information to developers, planners and the public. The Local Lists provide an important middle ground between the extensive Historic Environment Records, which attempt to record all historic assets whether of special interest or not, and the National Designations which have strict criteria and must be of national interest."

“Rather than duplicating the effect of Conservation Areas and Article 4s, Local Lists should be seen as part of the evidence base for the declaration or continued existence of the protected areas, with Conservation Area Management Plans and Local Plans/LDFs providing the policies.

“I'm not saying that everybody who works on Local Lists intends to use them in this way, but it is the most effective use of them and we know from experience here that Local Listing in isolation provides no protection to Historic Assets.

“I hope this explains a little of the reasons behind Local Listing and settles your mind as to why we spend so much time compiling them.”

I am grateful to Hugh for this contribution. I appreciate the aims of Hugh and his colleagues, which no doubt reflect the approach of other local authority planners in various authorities around the country in compiling local lists. And yet it still does not answer the fundamental question as to why it should be felt necessary to compile local lists when the statutory list is pretty comprehensive, and arguably includes some buildings whose listable quality is perhaps open to question.

I just feel that the planning system is already far too prescriptive, a view which is clearly shared by the government, and so we should not be putting yet more obstacles in the way of development. LPAs have the power to designate Conservation Areas and to make Article 4 Directions. These powers, combined with the listing of buildings under section 1 of the Planning (Listed Buildings and Conservation Areas) Act 1990, not to mention the powers of LPAs to give buildings temporary protection pending a decision by English Heritage (and ultimately DCMS) as to whether a currently unlisted building should be ‘spot-listed’, really ought to be sufficient in themselves to preserve our built heritage.

I am actually quite an enthusiast for historic buildings, and I have a particular interest in vernacular architecture, but I believe it may prove to be counter-productive to attempt to preserve or protect everything in aspic. It could ultimately undermine the real protection of our built heritage and bring the whole system of protecting heritage assets into disrepute. In the same way, I feel that there has been over-use of conservation area designations, and this has tended to dilute the perceived value of conservation areas in some cases.

One final point occurs to me. Whatever Hugh’s intentions (and those of officers doing similar work in other authorities), the way in which local lists are subsequently used in the context of development management may go rather beyond the intentions of conservation officers in compiling these local lists. The development plan may well include a prescriptive policy which seeks to resist or control the redevelopment, adaptation or alteration of locally listed buildings, and officers in development management may then apply those policies as a blanket reason for refusing permission for such developments. The conservation officers may not have intended that their local lists should be used in that way, but that is what all too often happens in practice. I really think we would be better off without such extra-statutory lists.

© MARTIN H GOODALL (with thanks to Hugh Winfield)

Thursday, 6 September 2012

Welsh planning changes signalled

There must be something in the air today. Not only have we had the announcement of major planning changes in England, but the BBC is reporting that Welsh Ministers in Cardiff are preparing to announce proposed changes that could shift the balance of Welsh planning policy, compared with the relentlessly pro-environment ‘green’ approach that has been followed in the principality recently. A formal announcement is expected next month.

It is reported that the proposed change “will tilt the balance in favour of economic growth over the environment and social factors” and that councils will be advised to take full account of the economic benefits of planning applications. It is suggested that in some cases these could now outweigh other factors such as the environment.

What I have not yet been able to establish is whether the change of approach which is apparently in contemplation will take the form of a general overhaul of Planning Policy Wales, or whether it is simply a proposed draft TAN on development and the economy. We may have to await next month’s expected announcement to find out.


Householder PD rights to be overhauled at last

The announcements that have been made from 10, Downing Street today are unusually detailed, particularly as regards the rewrite of Part 1 of the Second Schedule to the GPDO, which will significantly increase permitted development rights for house extensions within Class A. This suggests that some detailed work on the changes to the GPDO had been carried out at Eland House in readiness for this announcement, so it would be wrong to suggest that these changes have been made without reference to Pickles and his department; it is simply that he is now being told what is required, and presumably the price of his staying on as Secretary of State was his promised compliance with the new Downing Street diktat.

I am certainly pleased to see these changes. The messy compromise resulting from the last overhaul of Part 1 was never satisfactory, and so these further changes are long overdue. Needless, to say, the proposed changes are hedged about by various ‘ifs’ and ‘buts’ and there will continue to be restrictions in various protected areas (such as AONBs, conservations areas, etc.). The changes are also subject to a period of consultation, and there may well be some controversy over the proposals before they are finally published in the form of an amendment to the GPDO. Although the PM is expressing his firm resolve to push through these changes, it is entirely possible that some details could change before the they emerge in their final form.

I don’t propose to discuss the precise details of the changes to Part 1, which have been widely reported in the press, but will await the publication of the consultation draft of the proposed amendments to the GPDO that can no doubt be expected shortly.


Major planning changes ahead

It has become clear today that George Osborne’s prediction of further planning changes in an interview with Andrew Marr on BBC1 last Sunday was merely a precursor to the major announcement of further planning changes from 10 Downing Street today. Planning issues rarely hit the headlines, but this story has received wide coverage in the press.

It is significant that today’s announcement (and the press briefings that were no doubt given yesterday, leading to some slightly over-excited stories in today’s papers) came not from De-CloG but from No.10. It would seem that, following this week’s cabinet reshuffle, Uncle Eric is still in office but no longer in charge. Planning policy is now being dictated from the centre.

Cameron’s announcement foreshadows some quite dramatic changes in planning procedure and practice. How these will actually be implemented will emerge in the weeks and months ahead, but some of those that particularly grabbed my attention were:

• “Thousands of big commercial and residential applications to be directed to a major infrastructure fast track and, where councils are poor, developers can opt to have their decision taken by the Planning Inspectorate”


• “Calling time on poor performing town hall planning departments, putting the worst into ‘special measures’ if they have failed to improve the speed and quality of their work and allowing developers to bypass councils. More applications also will go into a fast track appeal process”

This suggests that a large number of planning applications that are currently dealt with under the usual LPA-controlled development management system will go straight to the Planning Inspectorate (as successor to the IPC) to be dealt with under the major infrastructure approvals regime, even though these may not in themselves be ‘infrastructure’ projects. It is immediately obvious that this is yet another nail in the coffin of ‘localism’ but, as I have pointed out before ,‘localism’ is simply not compatible with a centrally driven dash for development-led growth.

It appears that even those projects that are not dealt with in that way may well be fast-tracked through the appeals process. There is already a right to appeal against non-determination (treated as a ‘deemed refusal’) if a planning application is not determined by the LPA within eight weeks (which can be 13 or 16 weeks in the case of larger projects, especially if an Environmental Impact Assessment is involved), and presumably the intention is to make this a more attractive proposition to developers than waiting in the hope that the LPA will eventually get around to granting planning permission. It will be interesting to see what means are adopted to encourage such appeals.

One obvious flaw in this is the current difficulty developers frequently encounter in getting applications registered in the first place, which fixes the start date for the 8-week (or the 13 or 16-week) period. LPAs seem to use any and every excuse to delay registering applications. The application process is currently the subject of a consultation exercise by De-CLoG and there is clearly an urgent need to prevent the process being delayed by LPAs in this way. The current validation requirements will need to be significantly relaxed, involving a substantial reduction in the demands for often unnecessary information with which developers are all too often faced.

Other major bullet points in Cameron’s announcement include up to 70,000 new homes, including up to 15,000 affordable homes, and opportunities for first-time buyers to get onto the housing ladder, plus measures to bring 5,000 empty homes back into use. The government also wants to see an additional 5,000 homes built for rent at market rates in order to boost the private rented sector. The government does not say precisely how this is to be achieved, but it will clearly require a significant change in the current policy approach to housing development on green field sites.

Most of these changes will require primary legislation, and will no doubt be included in the promised Bill which is expected to be introduced within the next few weeks and is then going to be ‘fast-tracked’ through both houses of parliament, with a view to its receiving Royal Assent before the end of October. The timetable could conceivably slip slightly, but we can certainly expect this legislation to be in place before the end of the year.

It seems at last that we are going to get the kind of sea-change in planning policy (encouraging housing development in particular) that Maggie Thatcher engineered with Michael Heseltine in the early 1980s.


Tuesday, 4 September 2012

Minor earth tremor in Whitehall – Not many dead

The cabinet reshuffle has turned out, perhaps not unexpectedly, to be no more than the usual musical chairs, with various ministerial jobs being swapped about, but few really significant changes (as Austin Mitchell put it, a kerfuffle rather than a reshuffle).

A Tory backbencher recently asked provocatively whether the PM is a man or a mouse. When it comes to cabinet reshuffles, it seems he is the latter. I wrote several weeks ago that my impression was that this prime minister does not have the sheer guts of Harold Macmillan, who just 50 years ago (in 1962) had a ‘night of the long knives’ in which a hitherto unprecedented number of ministers (including the Chancellor of the Exchequer) were summarily dispatched to the back benches. I said that, political loyalties being what they are, I would be very surprised if ‘Dave’ could steel himself to sacrifice his old pal, ‘Boy’ George. I didn’t think Cameron was in the same league as Super-Mac. It seems I was right.

In fact, the Boy seems still to be the PM’s right-hand man, and continues to have a major role in developing government strategy – as witness last weekend’s announcement of further planning changes. It is the determination, apparently shared in equal measure by the PM and the Chancellor, to try to get the economy moving by relaxing planning controls that had made it the more likely in my view that Eric Pickles would be departing from De-CLoG. He had been brought in to deliver the Tories’ ‘localism’ agenda. This he did, in the form of the Localism Bill (now the 2011 Act), but ‘localism’ appears ever more irrelevant as a policy initiative, and is increasingly at variance with the government’s avowed intent to get the economy moving.

Worse than that, it seems that Uncle Eric represents a major obstacle to the implementation of the Cameron/Osborne growth strategy – a focus within the cabinet for ministerial opposition to the relaxation of planning controls and the easing of Green Belt policies. Not for the first time, Pickles seems to be heading up DeCLoG’s resistance to the Treasury’s efforts (backed by No.10) to free up development by changing planning rules. He fought the Treasury over the NPPF and is now shaping up for a fight over Osborne’s latest proposals on Green Belt and other planning controls. Frankly, if I were Cameron, I would want Pickles out of De-CLoG for that very reason, so that he could be replaced by a more compliant Secretary of State who could be relied upon to toe the Downing Street line.

However, it seems that Cameron has failed to grasp this particular nettle, and so he and Osborne can expect some significant internal resistance within the government to the changes that they want to see to the planning regime, which will only make it all the more difficult to overcome the vociferous opposition that can be expected both from the Tory back benches and from the CPRE, the Daily Torygraph and others who are incensed by this apparent threat to the green and pleasant Tory heartlands.

Meanwhile, Grant Shapps’ promotion to be Tory Party Co-Chairman leaves a vacancy at De-CLoG. Not only will at least one new face be seen in the departmental ministerial team, but there could well be other changes among the junior minsters in the department. We should know the answer in the next day or two.

[LATEST: Mark Prisk will take over from Grant Shapps as Housing Minister. Greg Clark moves to the Treasury and has been replaced by Nick Boles as the Minister for Planning. Bob Neill has left the government. Don Foster (Lib Dem) also comes in to replace his fellow Lib Dem Andrew Stunnell.]


Sunday, 2 September 2012

Green Belts up for grabs?

George Osborne seems to love nothing more than to upstage Eric Pickles who (at the time of writing at least) is nominally responsible for town planning, among his other responsibilities as Secretary of State for Communities and Local Government. ‘Boy’ George was deprived of the opportunity of pre-empting the publication of the National Planning Policy Framework on Budget Day earlier this year, but he took great delight on the Andrew Marr show on BBC1 this morning in announcing proposals for a significant relaxation of planning policy, which could lead to development in England’s hitherto sacred Green Belts. He called for "imaginative" thinking on the part of local planning authorities, to enable development on land which is currently off-limits to builders.

The government has a current gap in its legislative timetable, as a result of Tory back-benchers having killed off House of Lords reform, and so the intention is to shove a Bill through parliament, starting in the next couple of weeks, which will comprise or include the proposed relaxation of the planning regime. The government is clearly in a hurry over this (due to the panic in Whitehall over the sickly state of the economy) and it seems that they intend to rush this Bill through parliament with a view to its receiving Royal Assent by late October. That’s fast going by any measure. Publication of the Bill is expected next week.

Further legislation is promised to follow on from this, including an “Economy Bill” which may include further planning changes.

Osborne denied that the government is about to tear up the National Planning Policy Framework so soon after publishing it, but they are clearly looking to create greater flexibility over the designation of Green Belts and the adjustment of Green Belt boundaries. Those who follow this blog will be aware of the High Court judgments which have confirmed the extremely limited scope for adjusting Green Belt boundaries at present; so the removal of the current strait-jacket would be welcome. The Prime Minister has expressed a willingness in another recent interview to take on the NIMBYs in order to get more housing built, and so Osborne would appear to be relaying His Master’s Voice, even if there are members (currently) in the Cabinet who may not be altogether happy about this new initiative, not to mention all the usual suspects who made such a song and dance over the original draft version of the NPPF.

As readers will be well aware, I am no supporter of this government (or of any other), but I am quite encouraged by this news, which marks yet another step towards the adoption of the planning agenda I set out in an imagined speech by ‘James Hacker MP’ before the last General Election [see “REAL Reform of the Planning System” - Tuesday, 20 April 2010]. In that piece, my alter ego said this (slightly edited):

“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.

I shall require local planning authorities as part of the Development Plan process to revise Green Belt boundaries. 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. Green Belt boundaries should no longer be regarded as fixed for all time.

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 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.”

Whether the government will go quite that far remains to be seen. What is certain is that, however urgent their intention, the government will face some vociferous opposition from the nay-sayers. Perhaps the PM should quote the words I wrote as the peroration of James Hacker’s speech: “The course on which the government is now embarked may involve 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 boost the economy and to provide decent homes for our citizens.”