The Community Right to Build

I don’t propose to waste time discussing the government’s proposals for the so-called ‘Right to Build’ proposals. They will clearly require primary legislation, which we are promised will be included in the ‘Decentralisation and Localism’ Bill when this comes before parliament later this year or early next year.

Like much of what has been announced by this government so far, it will all be dependent upon the formulation of detailed proposals. Until that happens, it is no more than ministerial waffle.

The ‘Community Right to Build’ seems set to drive a coach and horses through the concept of plan-led planning, but the government has already blasted a huge hole in that concept by the abolition of regional strategies. The future of Development Plans is clearly another subject which the ‘Decentralisation and Localism’ Bill will have to tackle.

The government seems hell-bent on reducing the planning system to complete chaos, and appears to be oblivious of the consequences of doing so. I am neither a supporter nor an opponent of this government, but they seem to have all the judgment and wisdom of a set of characters out of the Jeeves and Wooster stories. I am not sure who I would nominate for the roles of Bertie Wooster or Gussie Fink-Nottle. The trouble is that the civil service may have considerable difficulty in fulfilling the role of Jeeves and extricating their young masters from the scrapes they are likely to get themselves into.

If the proposed legislation emerges in anything like the form which is apparently envisaged by ministers, we can look forward to bands of community enthusiasts battling it out with the local NIMBYs over rural housing proposals. As a planning lawyer I am already salivating at the prospect.

© MARTIN HGOODALL

Planning for ‘free’ schools’

In a statement in the Commons on 26 July, Eric Pickles attempted to explain how his department is going to do the bidding of the Schools Secretary (Michael Gove) and “tear up planning laws” to allow his new ‘free’ schools to be built.

In the short term, there is not a lot anyone can do to give effect to Gove’s ‘diktat’. So Uncle Eric was reduced to huffing and puffing that local authorities should “attach very significant weight to the desirability of establishing new schools and to enabling local people to do so” and that they should “adopt a positive and constructive approach towards applications to create new schools”, but he had to add that they should also seek to mitigate any negative impacts of development through the use of planning conditions or planning obligations. However, he added that LPAs should only refuse planning permission for a new school if the adverse planning impacts on the local area outweigh the desirability of establishing a school in that area.

Repeating the formula he used in May in announcing the end of regional strategies, Pickles said that LPAs and PINS should take this Commons statement into account as a material consideration when determining planning applications and appeals.

Ministers obviously recognise that LPAs may nevertheless refuse permission and so Pickles is going to ask the Planning Inspectorate to fast-track any appeal that is lodged. So it’s tough luck on those appellants waiting to have ‘ordinary’ planning appeals dealt with; any ‘free’ school appeal will go straight to the head of the queue.

Further liberalisation of planning law to ease the creation of ‘free’ schools will have to await legislative amendments, which are likely to take the form of amendments to subordinate legislation. Rather puzzlingly, Pickles suggested that this would be by way of changes to the Use Classes Order, but I would have thought that the appropriate vehicle would be through the addition of a further class of permitted development to Part 3 of the Second Schedule to the GPDO. This would not, of course, prevent Article 4 Directions being made by LPAs if they felt that such changes might be harmful if uncontrolled.

© MARTIN H GOODALL

Mediation in Planning

Up to now I had always been sceptical about the potential role for mediation in planning. The scenario I had in mind ran something like this :

Appellant: “We want to build 500 houses in your Green Belt”
Planner: “Absolutely not.”
Appellant “Well, how about 250 then?”
Planner: “No!”
Mediator to planner: “Well, I wonder whether there might be scope for agreement if you were to allow, say, 100 houses to be built on this Green Belt site?”
Planner: “!!!!!!”

I would be the first to acknowledge that issues of principle like that were never meant to be the subject of mediation, and perhaps we should all now study the report by Leonora Rozee and Kay Powell on "Mediation in Planning" which has recently been published. This report was commissioned in June 2009 by the National Planning Forum and the Planning Inspectorate following up a proposal in the Killian Pretty report which had suggested that the use of alternative dispute resolution at all stages in the planning process should be investigated.

The report describes how mediation can provide a cost effective way of resolving disputes. It includes five case studies, covering enforcement, an Area Action Plan and a major development, and draws upon the results of completed mediations as well as related work, expert interviews and a specially commissioned survey to test opinion, international experience, and relevant literature.

The report concludes that mediation can provide an effective tool to tackle a wide range of planning issues. It recommends that mediation should be strongly encouraged by Government by providing a policy framework, creating capacity to allow its benefits to be realised and establishing an appropriate regime of incentives and penalties to support the delivery of a new approach to planning. Bearing in mind the government’s wish to cut down the scope of the appeals system, this might appeal to them as a mechanism for doing so, although the necessary legislation is unlikely to be ready in time to be included in the ‘Decentralisation and Localism’ Bill, and so will probably have to await the second tranche of planning legislation the government has threatened to unleash on us in a couple of years’ time.

As I indicated above, mediation cannot replace the appeals system and there will always be areas where mediation will not be appropriate, but the report suggests that mediation has genuine benefits which should be considered by everyone involved in the planning process including lawyers, planning officers and consultants. I must take a closer look at it.

© MARTIN H GOODALL

Going, going, gone

While I have been otherwise engaged, the Secretary of State has at last carried out his much-trumpeted intention of scrapping Regional Strategies, as everyone is no doubt well aware by now. But, as I have observed before, the ghosts of the regional strategies will linger on, not least because (no matter whether targets are formally set or not), there is still a chronic shortage of housing in many parts of the country. The level of demand may have been masked to a degree by the difficulty of raising mortgages since the credit crunch, but the housing need is undoubtedly there, as the studies which informed the formulation of the regional strategies clearly showed. Those figures still hold good. Household formation continues apace, and housebuilding is nowhere near keeping up with it.

It has been suggested that we shall now have a housing free-for-all so far as applications and appeals are concerned, and PPS3 can be called in aid to support the need to release a lot more sites for housing. Not a lot has changed. The density target has gone (but that may lead to a demand for even more land for development at lower densities), and the definition of ‘brown land’ has been tweaked slightly, but PPS3 continues to urge the maximisation of development on urban land, and that must mean that garden land is still up for grabs, no matter what the press were told.

Things may change again when the new legislation on Development Plans is introduced, but it is unlikely to reach the statute book before next summer. Local Development Frameworks are also likely to face delay in the immediate future while planners work out how to take into account in their core strategies the removal of the regional element from the equation. In the meantime, developers who can raise the finance may have a wonderful window of opportunity if they get moving with their proposals. Nimby-driven planning authorities may dish out refusals, but on appeal there seems to me to be an enhanced chance of getting planning permissions for housing development, at least in the next year or so.

© Martin H Goodall

“Normal service will be resumed.........”

This blog is written when I can grab a few moments to do so, and so is subject to other demands on my time. In the next two to three weeks it is very unlikely that I shall have the time to write further posts, and so there may be nothing new posted here until towards the end of July.

There has been much more than usual to write about in June, due to the various announcements from the coalition government as they begin to set out their stall. Possibly the flow will now abate somewhat, as ministers and civil servants get to work on turning what at the moment are only statements of intent into real action.

This is a point which should be borne in mind. What we have had so far is what I have described as ‘government by press release’. With the exception, perhaps, of some shifts in ministerial policy (such as the slightly revised PPS3), nothing will actually change until necessary primary and subordinate legislation is put in place. For example, the amendments to the GPDO to allow changes of use between Classes C3 and C4 are currently out to consultation, and it will no doubt be the Autumn before the GPDO is actually amended to give effect to these changes.

In the same way, the abolition of the IPC, its absorption of its work into the Planning Inspectorate and the transfer of decisions on major infrastructure projects to the Secretary of State will have to await the passage through parliament of the ‘Decentralisation and Localism’ Bill (silly name). Latest indications are that the bill may not be introduced in parliament until some time in the New Year. Proposed changes to the Development Plan system will also have to be included in that bill. It may well be this time next year (or later) before the resulting Act becomes law.

In the meantime, this blog is going to take an enforced summer holiday, but normal service will be resumed later in July.

© MARTIN H GOODALL

Replacing the Infrastructure Planning Commission

Some weeks ago, I wrote that one of the items near the top of the governments ‘IN’ tray must be an urgent decision as to what is to replace the Infrastructure Planning Commission, in light of their stated intention to abolish it. As expected, the government is to announce its closure later today and its merger with the Planning Inspectorate.

Early reports of this decision seem to be based on remarks made by the Chancellor, George Osborne, to a conference of local authority chief executives in London yesterday. It is expected that the actual announcement will be made by the Minister for ‘Decentralisation’, Greg Clark, at the RTPI’s summer bunfight in London later today.

What is proposed is the establishment of a ‘Major Infrastructure Planning Unit’ within the Planning Inspectorate. Inspectors will report to DCLG ministers, who will then make a ministerial decision in the same way as they would in respect of a called-in planning application. I recall suggesting at the time the IPC was set up (under the 2008 Act) that this would be a more sensible way of organising it.

We are promised that major infrastructure schemes will still be ‘fast-tracked’, and proposals will still be judged against National Policy Statements, although these will in future be subject to parliamentary approval (which could further slow an already tardy process). It is the continuing absence of National Policy Statements in certain important areas which is preventing some major infrastructure schemes from being brought forward. This is an issue to which DCLG needs to give urgent attention.

[A final thought: Did the IPC ever actually receive a formal application for development consent during its short life?]

© MARTIN H GOODALL

Decisions under the new regime

Three Secretary of State’s appeal decisions have recently been published reflecting his revised approach following the announcement of the forthcoming abolition of regional strategies. In all three appeals he states that he has taken into account as a material consideration his own letter of 27 May (which he quotes verbatim). In all three cases, he made it clear that although the Regional Strategy currently constitutes part of the development plan, he affords it less weight in determining these appeals than he would have done prior to the publication of his letter. However he did not consider it necessary to refer back to the parties on the implications of this change of weight before reaching his decision as in two of the cases – in West Yorkshire and in Thurrock - he would anyway have refused planning permission for these proposal on the grounds that very special circumstances had not been demonstrated to justify allowing the release of land from the Green Belt, so that the proposals were not in line with the development plan in that respect.

In a housing appeal for 299 dwellings at East Tilbury, the Secretary of State records that it was accepted by all parties at the Inquiry that, as a matter of fact and irrespective of allocations in the East of England Plan (EEP), there is less than a 5 year supply of housing land in Thurrock. However, the extent of the shortfall was a major issue of contention, which the Inspector explored thoroughly, concluding that there is a serious shortfall in the 5 year supply of housing land. The Secretary of State agreed with the Inspector’s reasoning and conclusions that this shortfall represents a failure to deliver a flexible and responsive supply of housing in relation to the housing targets required by the EEP. He considered that this was a material consideration in favour of the appeal proposals and that, notwithstanding the fact that the weight he affords to this matter is tempered by affording less weight to the housing figures set out in the EEP than formerly, it needed to be considered in the overall balance. The appeal was allowed.

In another housing appeal, for up to 199 dwellings in Leighton Linslade, the Secretary of State, in applying the same approach to regional strategy, made it clear that he would anyway have refused planning permission for this proposal (even had, for example, the EEP housing targets been afforded their former weight) on the grounds that very special circumstances had not been demonstrated and that the proposal is not in line with the development plan - his reasons for doing so being set out in his decision letter.

Referring specifically to housing supply, he agreed with the Inspector’s reasoning and conclusions on whether the proposal would assist in meeting national housing policy objectives, having regard to the supply of housing. He agreed that the proposed housing provision, including affordable housing provision, would contribute to housing targets in an area identified for housing growth where there is a shortfall and this is a material consideration in favour of the appeal proposals. However, the weight he afforded to this matter was tempered by the fact that he affords less weight to the housing figures set out in the EEP than formerly. However, even had the EEP housing targets been afforded their former weight he did not consider that the contribution this proposal would make to meeting those targets would be of sufficient weight to demonstrate very special circumstances, either alone or in conjunction with those other factors which weight in favour of the proposal.

So in all three cases, the reduced weight given to regional strategies did not in the end affect the outcome of these appeals. Perhaps we should not be altogether surprised by this. The targets set by regional plans may no longer be given the same weight as before, but the objective studies and statistics on which those targets were based cannot be ‘abolished’, and will clearly continue to carry some weight in themselves.

© MARTIN H GOODALL