Thursday, 5 December 2013
Planning topics in the Autumn Statement
For reasons that I have never been able to understand, George Osborne loves making announcements about changes in planning law and practice that the government is proposing to introduce. Despite his remit being strictly financial and economic, Gorgeous George has never hesitated to trample on Uncle Eric’s turf, not to mention the territory of various other ministers, whenever he wants to big up his role as Chancellor of the Exchequer and Saviour of the British Economy.
As other commentators had spotted even before the Autumn Statement was formally delivered in the Commons today, quite a lot of what the Chancellor has thrown into his Autumn Statement is what someone aptly described as “warmed-over press releases” - various bright ideas that the government had dreamed up and announced some time ago.
For example, the Autumn Statement contains not one but two mentions (in paragraphs 1.220 and 2.191) of the proposal, previously announced by Chris Grayling, to set up a specialist Planning Court “early in 2014” to hear Judicial Review applications and statutory appeals (e.g. under sections 287, 288 and 289 of the 1990 Act) that currently go to the High Court. There is also an intention to speed up the process between lodging the claim and the hearing, plus a proposal for appeals from the Planning Court (part of the ‘Upper Chamber’) to leapfrog the Court of Appeal and be taken direct to the Supreme Court. All of this was in Grayling’s original consultation paper, but today’s announcement suggests that the government intends to press ahead with these proposals, irrespective of what responses have been received from consultees – a common approach on the part of this government, who see consultation as a purely nominal bit of window dressing before they can get on with what they were going to do in the first place. I still haven’t found the time to look at Grayling’s consultation paper, and must make a point of doing so before these changes come into effect. It looks as though we can expect the changes to be introduced early in the New Year, although it occurs to me that this may require primary legislation, in which case the changes may not come into actual effect until much later in the year.
It seems that the government intends to go on fiddling in a piecemeal way with the planning system. Further changes that they seem to be contemplating (although the Autumn Statement was distinctly short on details) include further steps in an effort to reduce delays at various stages in the planning process, coupled with various ‘incentives’ for improved performance and a promised reduction in the costs incurred by developers (but I bet that doesn’t include a reduction in application fees!). Among these ideas are proposed measures to improve plan making, including introducing a statutory requirement to put a Local Plan in place (I was under the impression that LPAs were already under that duty); also legislating to treat planning conditions as approved where a planning authority has failed to discharge a condition on time, and using legislative measures to strengthen the requirement for planning authorities to justify conditions that must be discharged before building can start. This seems to presage a welcome reduction in the imposition of so-called ‘conditions precedent’, which seem to be spooking quite a few builders and developers these days.
The government is clearly frustrated and disappointed that its cunning plan (worthy of Baldrick at his best) to put ‘under-performing’ local planning authorities into special measures, so that developers can apply for planning permission in those areas directly to De-CLoG (or in practice to the Planning Inspectorate), has netted only a single fish, and that was a Tory-controlled authority - much to the chagrin of the council leader, who has fired off a furious complaint to Uncle Eric about his lack of commitment to localism. So now ministers are going to move the goal-posts by allowing developers to bypass the LPA where it makes fewer than 40% of its decisions on time, in the hope that more authorities will be swept into the ministerial net. The problem is that, on recent form, at least half of them may turn out to be Tory-controlled, and these councils are likely to be just as upset by this as Blaby Council was.
Another little wheeze is to withhold the New Homes Bonus where planning permissions are granted on appeal rather than by the authority itself. So yet more grief for NIMBY-loving Tory councillors in the green and pleasant land of Middle England. This is part of a general review of the New Homes Bonus, which is intended to be completed by Easter 2014.
Some possible sugaring of the pill for NIMBYs is offered by a suggestion that the ‘bribes’ to accept new development offered to councils (in the form of the New Homes Bonus and the neighbourhood funding element of the Community Infrastructure Levy) might be extended to individual households in the affected areas. The government clearly hasn’t figured out yet how this might work, but it conjures up the intriguing possibility that NIMBYs might be directly bribed (officially and above-board, of course) not to object to development in their own backyard.
One particular bone of contention for developers is the very low threshold that some councils have been seeking to introduce for triggering a requirement for affordable housing contributions. In some authorities in Wales this has been set as low as 2 units! Wales, of course, is now beyond the reach of ministers in Whitehall, but in England it is proposed that there should be a nationally imposed minimum threshold of 10 units below which an LPA cannot demand any affordable housing or financial contributions in lieu. I fear, though, that this will prompt those LPAs that currently have higher thresholds to reduce them to the ‘default’ figure of 10 units, thus imposing an affordable housing obligation on an even larger number of housing developments than is the case now.
Further tinkering with the regime for major infrastructure projects is on the cards, but I don’t propose to go into these details here. (Another time, perhaps.)
Finally, the government is still thinking in terms of further widening the scope of Permitted Development. It is surprising, bearing in mind the predilection of ministers to repeat previously–made announcements whenever possible, that there was no mention of barn conversions and other previously proposed changes to the GPDO which are currently slated for next Spring. However, there was one additional proposal. This is for change of use from retail to restaurant or assembly and leisure uses (A1 to A3 or D1) to become permitted development. At the same time, it is also proposed to reverse the legislation (in 2008, or was it 2004?) that extended the definition of development in section 55 to include the insertion of a mezzanine floor in certain retail premises.
So we have here quite a rag-bag of further miscellaneous ideas from the government, which will only add even more complication to an already byzantine planning system (despite the government’s claims to be doing the opposite). It is disappointingly clear that the government still has no coherent strategic vision for planning and development, but remains hopelessly addicted to ad hoc gimcrack ‘quick fixes’, which will do little to sort out the chaotic mess into which the planning system has descended under successive governments. God save us from all these dreadful politicians!
© MARTIN H GOODALL