Environmental Issues | Planning | Real Estate
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The Government published the Planning for the Future White Paper, available here, in August 2020 hailing it as a once in a generation opportunity to fix a planning system that has long been regarded as not fit for purpose. The consultation period ended on 29 October 2020 and in the interim period there has been a great deal of debate regarding the Government's proposals. We summarise here some thoughts on the White Paper's proposals.
The White Paper has three "pillars" being:
The Local Plan process which is the focus of Pillar One of the White Paper has long been criticised as the plan making and adoption process is often a lengthy one. Only approximately 50% of local authorities have adopted local plans and many have taken up to 15 years to work through that adoption process. As the local plan is the primary material consideration in planning development control decision making, there is a very clear policy vacuum in many local authorities and for others their adopted local plans rapidly become out of date.
The White Paper has proposed that local plans should be revised in order to become literally more plan based, disposing of lengthy contextual aspects which recite the national guidance and policy background that has informed policies and equally lengthy explanations of process. This is a move to a more zonal style of planning. The White Paper also proposes that the local plan making process should be subject to a statutory time frame of 30 months in which they must be adopted. There is currently no such time frame.
The principle of these changes to the local plan process must be lauded. It is an extraordinary matter that a document which forms the basis of decision making for development proposals may not be in place in many local authorities and may be significantly out of date in others. However, there is also a more fundamental issue which is not addressed by the White Paper, being the flexibility of local plans. Local plans have never been living documents but rather appear to capture a moment in time and seek to crystal ball gaze into the future to determine what the housing, employment and infrastructure needs of a population may be for maybe a 10-15 year period. A great deal can change in that period of time as evidenced by the current seismic change in working and living behaviours as a result of the coronavirus pandemic. No local plan could anticipate that, but one which is a living document could at least adapt to it.
Following this theme, we have seen that the National Planning Policy Framework and Planning Practice Guidance are both living documents. They are web-based and are regularly amended to remain as fit for purpose as possible and to reflect changes in planning law. A local plan which is a living document could be revised on a policy by policy basis as necessary rather than the current requirement for substantial and lengthy reviews or preparations of completely new documents. The White Paper does not address this challenge and is focussed instead on speeding up the length of the adoption process and slimming down the scope of the local plan document.
A debate has also arisen about the use of other aspects of the planning system to enable the delivery of housing. The Nationally Significant Infrastructure Project regime does not currently permit housing-led projects to be granted Development Consent Orders. The regime has been particularly effective in consenting energy and transport infrastructure projects. Serious consideration will need to be given to whether this regime could lend itself to the speedy delivery of large-scale housing developments.
Pillar Two of the White Paper focuses on design. The intention is to build on the National Design Guide, the National Model Design Guide and the Manual for Streets to create consolidated national design guidance which will be supplemented by local level design guides and codes.
The heavy emphasis on design is an important shift in the focus on the planning system. The lack of public confidence in the planning system is often centred around the appropriateness of design and appearance of developments, not just the principle of development. The codifying of design at a local level is particularly important in giving local people confidence in the planning of their area.
This idea is not entirely new of course. Local authorities have long adopted supplementary planning guidance documents to inform aspects of design for example in relation to shop fronts or specific to conservation areas, however the White Paper's proposals involve a more comprehensive approach to all development across a local authority's area.
The proposal to expedite development that complies with pre-established principles of what good design looks like, as informed by the various design guides and codes, is also a welcome incentive to developers and will be a relief to local authorities in terms of the decision making process as this will significantly reduce the decision making burden on them. However, some caution must be exercised in order to avoid the homogenisation of development and what may prove to be an unintended consequence of disincentivising bespoke design and innovation.
Pillar Two is also concerned with promoting environmental recovery and long-term sustainability, mitigating and adapting to climate change and reducing pollution, and improving the living environment of towns and cities. This will be addressed by amending the National Planning Policy Framework, creating a simpler framework for assessing environmental impact and enhancement opportunities that is focussed more on outcomes than process, updating the statutory framework for protection and conservation of historic buildings and areas to balance conservation with sympathetic change in order to address climate change, and to improve energy efficiency standards for buildings. There is a great deal more detail to be seen in relation to these aspects of the Pillar Two proposal.
The focus of Pillar Three of the White Paper is on the delivery of infrastructure through Section 106 agreements and the Community Infrastructure Levy (CIL). The White Paper implies that Section 106 agreements will be removed, however a great deal of the commentary by planning professionals has speculated that it is only the requirement for financial contributions through Section 106 agreements that will be removed while Section 106 agreements will be retained for the purpose of delivering on-site infrastructure. The perception is that Section 106 agreement are a useful tool and the negativity surrounding them is the length of time it can take for developers to negotiate terms with local authorities. This is something that could be addressed with a more stringent and inflexible time period for determining matters to force timely decision making by all parties in relation to the terms of Section 106 agreements. It is wrong to think that Section 106 agreement do not work just because they can take a long time to agree.
The Community Infrastructure Levy has been criticised since its introduction in terms of its ability to enable sub-regional infrastructure to be delivered. The need to pool levy payments in order to provide substantial items of infrastructure has led to a situation where local authorities have not been able to adequately utilise their levy income meaning that infrastructure that may be required as an indirect effect of development is not being delivered. Many will welcome the end of CIL, but it raises a question as to whether its replacement by an Infrastructure Levy will make any material difference particularly as the proposal is that the Infrastructure Levy will be paid on occupation of development rather than commencement of development as is currently the case with CIL.
It is well known that local authorities are often under resourced and it seems extraordinary to propose that many of the requirements currently placed on developers in terms of the delivery of infrastructure should fall in future to local authorities. After all, one of the key reasons behind the inefficiency of the planning system that has led to the creation of the White Paper and which will no doubt inform much of the parallel review of the wider planning system that will be considered by The Housing, Communities and Local Government Committee later this year, is that the under-resourcing of local authorities has led to their failure to operate a fast and efficient planning system.
It is intended that local authorities will be able to borrow against future Infrastructure Levy payments in order to provide infrastructure in advance. However, one of the reasons that Infrastructure Levy is proposed to be paid on occupation rather than commencement of development is in order to make the calculation of the levy more certain as it will be informed by sale prices. If levy revenue is not known until occupation this will leave local authorities to guestimate what that revenue may be. This will also pre-suppose that development which has planning permission will in fact be built out. Local authorities may find themselves either over estimating levy income or borrowing against a levy income which does not materialise if development is not carried out. Further, the proposal to pay Infrastructure Levy on occupation is heavily focussed on how housing development may deliver levy income rather than non-housing development.
The White Paper has a strong focus on how the planning system delivers housing. However, an effective planning system will be focussed not only on the delivery of housing but the creation of sustainable communities. This means an holistic approach that goes beyond facilitating housing demand and incorporates all aspects of development including facilitating our transition to zero-carbon through the delivery of renewable energy projects, addressing mobility not just sustainable transport and the delivery of all aspects of infrastructure from highway projects to ports to waste and water management.
Renewable energy developers, for example, have raised concern about the proposed Protected Area designations which the White Paper proposes to be enshrined in local plans as these areas will invariably be where such projects are most appropriately located. This proposed designation together with the Growth and Priority Area designations illustrate the emphasis of the White Paper on housing delivery in isolation of other aspects of sustainable community making and the possible unintended consequences that may arise from such an approach.
A fundamental change is needed in planning policy in respect of the delivery of renewable energy projects, including the revision and adoption of National Policy Statements that reflect current technology trends, in order to further facilitate the delivery of renewable energy projects. The same is the case for other infrastructure projects.
The White Paper has opened an important national debate about the fitness of the current planning system to control and deliver high quality development. This debate presents an opportunity to go well beyond a focus on the delivery of housing, although that is clearly national priority, and to move to a more holistic approach to the delivery of sustainable communities through an even more radical approach to local plan making, development consenting and policy drafting. It is noteworthy that the Royal Town Planning Institute has proposed the creation of Green Growth Boards to provide a strategic context for local plans and to align them to economic, infrastructure and environment strategies and the Transport Planning Society have proposed that plans to decarbonise transport need to link to spatial planning and transport policies.
If the coronavirus pandemic leads to long-term major changes to living and working habits such as a desire for rural living, a shift towards the focus on high streets to meet the demands of home workers, a transport system that addresses local mobility where commuting habits change, then these are all matters that the current planning system is not agile enough to respond to. An agile system that takes a holistic approach to policy and decision making goes beyond the current scope of the White Paper.