Where does the government go now?

The government has still got to do some hard thinking about the planning system. There is an, as yet, unresolved contradiction between the attitude to the planning system which the Tories displayed both before they came to power and in the first ten months after the election and, on the other hand, the government’s apparently damascene conversion (dating from this year’s budget statement at the end of March) to the benefits of built development in contributing to much-needed economic growth.

Scrapping regional strategies (and with it the removal of any form of regional planning) clearly serves the anti-development agenda with which the government came to power. The Localism Act, with its concept of neighbourhood planning and various other forms of ‘localism’, was also directed to the same end. The original intention behind scrapping detailed ministerial policy guidance and replacing it with a single very thin document (the NPPF) was similarly to remove what were seen as over-prescriptive centrally promulgated policies, so as to leave local planning authorities free to resist development in their own back yards. An intention to emasculate the appeals system was another item on the same agenda.

The first and most controversial change has been the alleged transformation of the draft NPPF from what originally promised to be a fairly innocuous document, which would have left local planning authorities with what they imagined was to be enhanced freedom of action in turning down planning applications, to an engine for unrestricted development. For the reasons which I have explained previously, I do not believe that this was the primary intention in the drafting of the NPPF, nor do I believe it will necessarily have this effect. Mere omission of some of the detailed guidance in existing PPGs and PPSs does not necessarily betoken a change of approach. On the other hand, the opportunity was taken to throw into the draft document some encouraging noises about development, in order to bring the document into line with the government’s newfound need to promote economic growth (or, at the very least, to fend off another recession). The result is a somewhat inept piece of drafting which pleases no-one.

The economic outlook is still very threatening, and the government cannot afford to lose any opportunity to shore up a faltering economy. I suspect that this will ultimately prove to be the stronger of the two competing forces which are currently pulling the government in opposite directions over town planning. Much as the National Trust, the CPRE and the Daily Torygraph may hate it, it may well prove to be the pro-development agenda which will win the day.

The Federation of Master Builders suggested recently that it will be necessary for the government to reintroduce housing targets, whether on a regional or on a county-by-county basis, but this would be so embarrassing politically that it is beyond the bounds of practical politics. For the same reason, the government cannot be seen to abandon the NPPF in face of the chorus of dissent which greeted the publication of the consultation draft. So far as the NPPF is concerned, what is likely to emerge is a messy compromise, which reinstates some of the material omitted from the consultation draft but was to be found in previous ministerial policy guidance, and perhaps some toning down of the apparently aggressive pro-development thrust of the document.

Economic necessity will nevertheless drive the government to find other means by which development can effectively be promoted. This requires only a few simple mechanisms to be put in place, none of which will need legislation. First, in publishing a toned down final version of the NPPF next March (or April), the government should accompany it with a robustly worded letter or circular stressing the importance it places on economic growth and on the planning system as a means of delivering that growth. This statement should reiterate that the default answer to any planning application is ‘Yes’, and should confirm that ministers will apply this approach in determining appeals. (There is nothing revolutionary about this; as my colleague David Brock has pointed out, it has been written onto ministerial planning policy ever since the 1920s!) Secondly, any lingering thoughts of emasculating the appeals system should be abandoned; on the contrary it needs to be strengthened, and extra inspectors may well have to be recruited to cope with an increased workload.

In the absence of regional housing targets or similar centrally imposed policies, planning by appeal is the only means by which the reluctance of local planning authorities to allow sufficient development in their areas can be overcome. This approach might arguably be an unsatisfactory way in which to deliver much-needed development, but the government has left themselves little option, having abandoned a more structured policy-based approach.

In the meantime, what of the government’s much-vaunted housing strategy? This rag-bag of miscellaneous ideas, hastily cobbled together last week in something of a panic, can hardly be dignified with the term ‘strategy’. It has already become clear that many of the proposals will have little practical impact on housebuilding, and will hardly counter the action taken by the government soon after it came to power, which (to take just one example) has had the effect of cutting affordable housing starts to a pitifully low figure.

The government clearly has a mountain to climb if it seriously intends to get housebuilding moving. This makes it all the more likely that they will continue to rely on a strongly pro-development policy stance when publishing the NPPF next year, even if the document itself is slightly expurgated by comparison with the consultation draft . By itself, of course, a pro-development policy stance will not be enough to free up the logjam; fiscal and financial incentives will have to be considerably beefed up in order to oil the wheels of the housing market. Ministers are now getting so desperate about the economy (which has been depressed largely through their own post-election policies) that they appear to be quite ready to adopt desperate measures, even if it does involve yet more U-turns away from the over-hasty doctrinaire measures taken shortly after the government came to power, such as cutting the funding for social housing.

One views the developing situation not so much with amusement as bemusement.

© MARTIN H GOODALL

Still busy, busy, busy

As you may have gathered from the time which has elapsed between posts on this blog recently, I have become increasingly busy in the past couple of weeks, and this inevitably makes it difficult to find the time to write items for the blog. There is certainly no shortage of material at the moment, and it is just a question of getting it written up. I will do my best to keep up with the blog, so as not to disappoint the growing number of readers visiting the blog.

© MARTIN H GOODALL

Localism Act 2011 - Commencement

Following Royal Assent on 15 November, the Localism Act 2011 has now reached the statute book. Section 240 of the Act makes the following provisions as to commencement [planning provisions printed in bold italics] : -

The following provisions in the Act came into force on 15 November: - section 23, paragraphs 57 and 58 of Schedule 4, and section 26 so far as it relates to those paragraphs, section 37, Chapter 2 of Part 5 so far as it confers power on the Secretary of State to make regulations, section 86, Chapter 3 of Part 5 so far as it confers power on the Secretary of State or the Welsh Ministers to make regulations or orders, sections 103 and 104, section 109(1)(b) and (2) to (6), paragraphs 1, 13(1), 18 and 19 of Schedule 8 and section 109(7) so far as they relate to those provisions of that Schedule, section 110, sections 116 and 121 and Schedules 9 to 12 so far as those sections or Schedules confer power on the Secretary of State to make regulations or publish documents setting standards, sections 117 to 120, the provisions inserted by section 122 so far as they require or authorise the making of provision in a development order, section 144, sections 168 to 175, section 233 and Schedule 24 so far as they confer power on the Treasury to make regulations or orders, sections 234, 235, 236, 238, 239, 240 and 241, and Part 15 of Schedule 25, and section 237 so far as it relates to that Part.

Section 114 came into force on 16 November.

The following provisions of the Act will come into force on 15 January 2012 : - section 25, Chapter 8 of Part 1 so far as it relates to England, section 44, section 45, section 47, section 71, section 80, sections 111 to 113, section 143, section 177, section 183 and Schedule 18, Chapter 2 of Part 8, except section 197(3)(e) and (f) and (5), and Parts 6, 8, 14, 17 and 29 of Schedule 25, and section 237 so far as it relates to those Parts.

The remainder of the Act will come into force on such dates as are specified in the usual plethora of commencement orders. There is no guarantee that every section of the Act will actually be brought into force, and as planning professionals are very well aware, there are still sections in the 1991, 2004 and 2008 Acts which have not yet been brought into force and probably never will be.

Planning, which was originally in Part 5 of the Bill now forms Part 6 of the Act, comprising sections 109 to 144. Chapter 1 (sections 109 to 113) deals with the abolition of regional strategies and other matters relating to plan-making. Chapter 2 (sections 114 and 115) contains amendments to the CIL regime. Neighbourhood planning is dealt with in Chapter 3 (sections 116 to 121). Chapter 4 comprises a single section (122) introducing a requirement for consultation before applying for planning permission. The new enforcement provisions are set out in Chapter 5 (sections 123 to 127). Chapter 6 (sections 128 to 142) abolishes the Infrastructure Planning Commission and makes revised provision for the processing of applications for major infrastructure projects. Finally, Chapter 7 (sections 143 and 144) includes the notorious provision in section 143 introducing ‘local finance considerations’ as a material consideration in the determination of planning applications.

More detailed provisions on some of these topics are to be found in the following schedules: - Schedule 8 — Regional strategies: consequential amendments; Schedule 9 — Neighbourhood planning (Part 1 — Neighbourhood development orders; Part 2 — Neighbourhood development plans); Schedule 10 — Process for making of neighbourhood development orders; Schedule 11 — Neighbourhood planning: community right to build orders; Schedule 12 — Neighbourhood planning: consequential amendments; Schedule 13 — Infrastructure Planning Commission: transfer of functions to Secretary of State (Part 1 — Amendments of the Planning Act 2008; Part 2 — Other amendments).

All very turgid; but we are going to have to get our heads round this in the months to come.

© MARTIN H GOODALL

Poundbury - a curate’s egg?

I was in Dorset last week and took the opportunity while I was there to visit Poundbury. Within a day of arriving in the area, I learnt that Poundbury is known locally as “Charlieville” or “Noddytown” and that its founding father, HRH The Prince of Wales, is colloquially referred to in that area as “Charlie-boy”. It seems that the denizens of Dorchester are a more earthy lot than the ‘refaned’ residents of Tetbury and district, who would never dream of referring to the heir to the throne in such a disrespectful way.

A conversation with a local architect suggested that the social mix at Poundbury is not so wide as it might be ideally, notwithstanding the inclusion of 20% social housing and some additional shared ownership properties. I was told that Poundbury residents are predominantly professional people or are retired, so the age profile is also untypical of the population as a whole.

On approaching Poundbury, I was immediately struck by its wind-swept hilltop site. It reminded me of the post-war council estates outside some of our larger towns and cities, so often located on a bleak, windy site, which inevitably creates an uninviting and even alienating environment even before a single brick is laid. This particularly applies at Poundbury to the larger, more recent area of continuing development on the highest ground. Thomas Sharp commented many years ago on the closed vistas which are such a notable feature of traditional English townscape, but in the later phases of development at Poundbury the opposite is all too often the case, with open views out of the town which entirely destroy any sense of enclosure.

The ambience of the earlier part of the development (for example around Pummery Square) is more intimate, and attempts a rather smaller scale vernacular pastiche than the polite architecture or even quasi-monumental style of some of the buildings in the later phases of development. Even so, there is a certain quirkiness in the design of individual buildings which is reminiscent of the style of Clough Williams-Ellis. In fact, my wife commented on the same slightly nightmarish quality that is evident at Portmeirion. Might the residents of Poundbury feel sometimes that they are extras in a re-make of “The Prisoner”?

Whether Poundbury works as a mixed use development is open to question. The range of local shops is very limited, although a Waitrose store is due to open later this month. The only local industry that I noticed is the Dorset Cereals factory (presumably a B1 use). I gather that working from home is encouraged, and some offices are now being built, but Poundbury remains overwhelmingly a residential development with only limited provision for other uses.

Despite its original aspirations, and the various claims made for it, I don’t think Poundbury succeeds in breaking new ground in terms of land use planning or urban design. Ebenezer Howard was far more successful with his developments at Welwyn Garden City and Letchworth. Poundbury, by contrast, has a number of distinct drawbacks, which I have referred to above, and on balance I think it is a failed experiment – not a disaster, certainly, but a disappointment. Whatever HRH may have hoped, I rather doubt whether Poundbury has any lessons to teach architects or town planners; nor does it offer a model for future urban development.

© MARTIN H GOODALL

Localism Bill – Lords Third Reading

The House of Lords seems to have become addicted to debating planning recently. In addition to dealing with the committee stage and report stage of the Localism Bill last month, they had an opposition-sponsored debate on planning on 13 October (to which I referred briefly in this blog on the 23rd). This was followed by a second debate on planning in the Grand Committee on the 27th, this time on a formal government motion to consider the NPPF, and finally they had the third reading debate on the Localism Bill on 31 October.

The debate on Third Reading ranged over various parts of the Bill but, so far as the planning provisions are concerned, dealt only with the definition of sustainable development and transitional arrangements. In both cases, the government stuck to its guns. The definition of sustainable development, if we get one at all, will be in the NPPF, not in the Act. The government (i.e. De-CLoG) is still in full head-scratching mode over transitional provisions. This really relates to the status of previously adopted local plans and core strategies in light of the NPPF. My colleague, David Brock, has expressed his doubts about the bland assurances given by Baroness Hanham in the debate in the Grand Committee (see his recent blog entry, which can be accessed by clicking on the link on the side-bar on the left of this page), and I fully share his doubts, as do various members of the House of Lords and many other people concerned with the practical effect of the legislation and of the forthcoming NPPF.

The Bill now goes back to the Commons for the consideration of Lords amendments – a mere formality, as no opposition amendments were in practice made to the Bill, and it should then receive royal assent later this month. But that is when the fun will begin, and lawyers like me will start crawling all over it, trying to work out exactly how it is to be interpreted and how the various provisions will apply in practice. There will undoubtedly be difficulties of interpretation, and some aspects of the new Act will undoubtedly give rise to significant legal disputes, not least those provisions relating to enforcement and, in particular, concealed development, which is set to become a major legal battleground in the years to come.

© MARTIN H GOODALL

Planning – the way forward?

Following the end of the consultation period on the draft National Planning Policy Framework earlier this month, it is becoming clear that numerous local planning authorities all round the country, and of all political hues, have sent a range of robust responses to the document to De-CLoG. The points they make are varied, but one message comes through loud and clear - they don’t like it.

Up to now the Secretary of State has seemed intent on impersonating Jabba the Hut in the way he has responded to any criticism or counter-argument to his stated intentions, not only about the NPPF but about almost anything and everything, including dustbin collections. However, it is going to be difficult for the government entirely to ignore the weight of opinion which has been brought to bear on this subject.

Although there are some LPAs whose views are indistinguishable from those of the Daily Torygraph, the National Trust and the CPRE, one theme which has emerged on all sides is the concern expressed about the loss of much very useful, even essential, policy guidance which is contained in the existing suite of Planning Policy Guidance Notes (and Statements) which the NPPF is intended to replace. The fear is that the NPPF will leave numerous lacunae in policy guidance which will lead to considerable uncertainty and the possibility of endless disputes as to the proper approach to those issues which were covered in the previous policy advice but about which the NPPF is silent.

This is precisely the objection I identified right at the outset of this exercise, when the government first announced their intention to produce a substantially abridged version of ministerial policy advice in the form of the NPPF, in place of all the PPGs and PPSs we have now. I predicted in this blog the difficulties and uncertainties which this would cause, and I made the point (as others have more recently) that the length of the existing policy advice, in terms of the number of pages it covers, is not an objection in itself to that policy guidance.

One option which the government might be well advised to consider (although it would involve considerable loss of face for ‘Jabba the Hut’ himself) would be to withdraw the proposed NPPF altogether. This is not so say that the government should abandon its determination to achieve economic growth through development, simply that they should go about it in a different way. If the government is prepared to admit that they made a huge mistake in seeking to scrap all the existing ministerial advice on planning policy, they could nevertheless publish a circular (very much on the lines of the pro-development circulars published by Michel Heseltine in the early 1980s, starting with Circular 9/80 and ending with 14/85) which makes the government’s more liberal approach towards development abundantly clear. Any necessary adjustment can then be made to individual PPGs and PPSs, although comparatively few changes to those documents are likely to be needed.

Such a revised approach would have the advantage that there is no legal or political obligation on the government to consult on a circular before it is published, and such consultation as might be required on amendments to PPGs and PPSs would relate solely to any minor changes that might be needed to bring a particular document into line with the over-arching policy set out in the new circular. Such an exercise would be much less likely to stir up controversy than the consultation exercise over the draft NPPF has done.

The question is – has the government got the guts to do this? It would involve what will almost certainly be seen as yet another U-turn, but that in itself could have its advantages. It would wrong-foot much of the rather over-heated and misguided opposition to the draft NPPF, while not in fact representing any retreat from the government’s intention to promote growth through development.

In practice, I rather expect that we shall still get a revised version of the NPPF, but perhaps fleshed out with some of the material which was inadvisably omitted from the original draft, and with some anodyne reference to the use of brownfield land as a sop to the critics. That would be a pity but politics, as they say, is the art of the possible, and David Cameron would never do anything to dent the pride and self-regard of ‘Jabba the Hut’, now would he?

© MARTIN H GOODALL

Change at the Planning Inspectorate

Planning professionals will already be aware of the news that Peter Burley, who has been in charge of PINS’ Welsh branch in Cardiff, has been appointed Chief Planning Inspector.

My colleague David Brock has very recently commented on this in his own blog, and rather than my repeating what he has already written, I would refer you to the link to David’s blog on the left-hand side bar of this page. I agree with everything David has written about this.

It is encouraging that we have a professional head of the Inspectorate at an operational level (replacing the position which was formerly held, without the title but with great distinction by Leonora Rozee), although the chief honcho (Sir Michel Pitt) is purely a management man with no previous professional experience in PINS.

On the other hand, I share David’s concern at the removal of the PINS website. The Inspectorate should be and should be seen to be at arm’s-length from government. I am not paranoid by nature, but I strongly suspect machinations within De-CLoG to bring what had occasionally been an independent voice under central control, and to silence any potentially dissentient views.

© MARTIN H GOODALL