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Planning for the Future – a simpler, clearer and quicker way forward?

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12/08/2020

Introduction

The Prime Minister introduced the long awaited Planning White Paper by stating that the current system “simply does not work”. Instead, the Government sets out to create a system “that is simpler, clearer and quicker to navigate”.

This sort of ambition is to be welcomed. In the current climate, it is more important than ever to remedy the numerous inefficiencies and delays that are unfortunate hallmarks of the current planning system.

The White Paper seeks to achieve the following five goals:

  • Ensure LPAs take more decisions at the plan-making stage
  • Make more land available for homes, development and support the renewal of town and city centres
  • Modernise the planning process by making it more data-driven and speed up decision-making
  • Bring a new focus to design and sustainability
  • Improve infrastructure delivery by reforming developer contributions.

Varying levels of detail are provided in respect of each of these goals. The key changes proposed, together with the most significant gaps, are summarised below.

The consultation on the White Paper runs until 29 October 2020 and we would encourage all stakeholders to review the proposals and consider responding.

Plan-Making

This is not the first Government to put plan-making at the forefront of reforms to the planning system. Yet for various reasons we continue to see a large number of LPAs who do not have up to date plans. The proposals contained in the White Paper seeks to remedy this.

Growth / Renewal / Protected

The flagship proposal is for local plans to allocate all areas of land into one of the following three categories:

  • Growth: land for substantial developments (e.g. urban extensions, new settlements, redevelopment or urban regeneration)
  • Renewal: land suitable for development (likely to be existing built areas where smaller scale development is considered appropriate)
  • Protected: land where more stringent development controls are justified. This will include green belt, AONBs, conservation areas and “areas of open countryside outside of land in growth or renewal areas”.

Local plans would identify a list of “suitable uses” for sites that are allocated for “Growth” or “Renewal”. They would also include design parameters, such as height or density limitations. Specific design codes for growth areas may also be required.

This system would require developers to prepare a detailed masterplan at an early stage, to ensure suitable design parameters can be put forward. Further, developers may also want to include a broad list of suitable uses to avoid being constrained in the future. There is likely to be a balance to be struck here between providing sufficient specificity to obtain LPA support and retaining flexibility. The requirement for masterplanning at an early stage will also create challenges for large sites with a number of different landowners.

What impact will the changes to the local plan process have on applications?

The White Paper states that the allocation of land as “growth”, “renewal” or “protected” would determine what application process would be applicable.

One of the key points to note is that sites that are identified as part of a “growth” area would receive outline planning permission for the uses specified in the local plan.

To secure a full permission there would then be three options:

  • Reserved matters approval (it is stated that this process is also to be reformed but it is not yet clear what shape these reforms will take)
  • A Local Development Order
  • For “exceptionally large sites”, the Government will consider whether a Development Consent Order could be an appropriate route.

It is also important to note that the White Paper suggests that, where the principle of development has been established, the determination of detailed planning decisions will be delegated to officers.

For “renewal” areas, there will be a strengthened presumption in favour of development. To obtain permission, a planning application would still be needed; however, where the proposals accord with the plan, the White Paper indicates that it should be easier to obtain permission.

The Government is also proposing to allow for “popular and replicable designs” to be dealt with through PD in “renewal” areas. This would require “pattern books” to be prepared, which would set out standard building types and various details (e.g. heights) that are considered appropriate. If these standards are met, then a developer would have the PD right (subject to obtaining prior approval of various details).

Development of “protected” areas will also be dealt with through a planning application, albeit the Government’s intention is clearly to restrict significant development taking place in these areas.

Questions may be asked as to how comfortably land will fall into one of the three ‘zones’. For example, “protected” areas appear to be intended to protect heritage assets, but these are regularly found in the midst of brownfield sites which would naturally fall within “growth” areas. The potential for conflicting land uses and later complications arising from nuisance claims will need further careful deliberation. There is very little said about how plans will make provision for development which is often contentious such as waste and minerals, which perhaps stems from the primary focus seemingly being given to housing.

It will still be possible to submit a planning application for proposals for “growth” and “renewal” areas which are different to the adopted plan; however, the Government wants this to be “the exception rather than the rule”.

The proposed amendments to the development management procedure would be heavily reliant on LPAs adopting local plans quickly and ensuring enough land is allocated for development in the right places.

Speeding up local plan preparation

The White Paper notes that in 2019 the average time taken from plan publication to adoption was 815 days, which is clearly at odds with the government’s intention of speeding up the planning system.

The White Paper proposes to introduce a statutory duty for LPAs to adopt a new local plan 30 months from the legislation coming into force, or 42 months where either: (i) LPAs have adopted a plan in the previous 3 years; or (ii) where a local plan has been submitted to the Secretary of State for Examination.

To assist in speeding things up, the White Paper proposes to abolish Sustainability Appraisals. A simplified process is hinted at in the White Paper. We will have to wait to see what this entails. The Duty to Co-operate will also be removed, but the Government is giving further thought to how cross-boundary issues can be addressed. Again, the detail is awaited.

It is suggested that the preparation of a local plan could be split into the following five stages:

  • Stage 1 – a call for sites, to seek suggestions for each of the three categories of land (6 months)
  • Stage 2 – the LPA draws up its plan, together with any necessary supporting evidence (12 months)
  • Stage 3 – the LPA submits the plan for examination and, at the same time, undertakes a public consultation (6 weeks)
  • Stage 4 – the Inspector considers whether the plan is “sustainable” and “makes binding changes which are necessary to satisfy the test”. The Inspector will give those who have submitted comments the right to be heard (whether in person or virtually) (9 months)
  • Stage 5 – the local plan documents ae finalised and then come into force (6 weeks).

It is worth highlighting that the test to be applied by an Inspector, when examining the plan, would be whether the “plan contributes to achieving sustainable development”. This would replace the existing test of soundness. However, the achievement of sustainable development can mean different things to different stakeholders. The practical application of this test could raise more questions than it answers. Further guidance is expected on the application of this test.

This reduced timetable would make it vital to fully engage at the call for sites stage. The direction of travel is likely to be fairly firmly set at this point.

Housing Requirement

The Government is currently undertaking a separate consultation on its proposed changes to the standard method for assessing local housing need. This consultation closes on 1 October 2020. The standard method was introduced in 2018; however, almost immediately the Government indicated it would be amended.

The White Paper states the new “standard requirement” would be binding, so there would not be an opportunity for an LPA to set itself a different target in their plan. Although it is suggested that LPAs may agree an alternative distribution of their requirement via joint arrangements with another authority.

However, the suggestion is that the Government set housing figures for each area will go beyond the outcome of the new “standard requirement” and reductions may be made based on environmental constraints. There is little detail on how this ‘top down’ housing figure would be set. How these environmental constraints are to be assessed and determined is unclear. There will be issues of process, openness and evidence base to consider.

The Government suggest that, with the adoption of the new approach to plan making, there should be no need for LPAs to demonstrate a five year supply of land. The housing delivery test and presumption in favour of sustainable development will be retained, to allow for more development to come forward if an LPA is not delivering on its requirement.

The White Paper does not address whether the requirement to demonstrate a five year land supply will be retained until an LPA has a new-style plan in place (which meets the standard requirement). It would seem illogical for it to be abolished in advance of an up to date plan being in place. However, this is still to be confirmed.

The Government’s goal of providing a better distribution of homes across the country is to be encouraged. However, the revised methodology still produces very large numbers for London and the south-east. It is considered unlikely that these figures will be met given the constraints on development in these areas.

The revised methodology also shows a lack of ambition for the north-west, north-east and Yorkshire and the Humber. In these areas the new methodology does not appear to provide a meaningful increase on the requirement figure when compared to recent delivery.

The question arises of how this really reflects the PM’s agenda of ‘levelling up’ the North, particularly when the new methodology appears to reduce housing numbers in major cities such as Leeds, Manchester, Liverpool, York and Sheffield (when compared to the current standard method). Limiting the ability of these cities to grow appears counter intuitive.

Unless delivery in London and the south-east increases dramatically, the new methodology is unlikely to be the route to delivering 300,000 homes per year.

Modernising the Planning Process

The Government is looking to speed up plan-preparation and decision-making by digitalising the planning process. This will mean increased use of technology, more standardised forms, and much more emphasis on data driven applications rather than lengthy documentation. The Government is also proposing to introduce standard national conditions to cover common issues. These proposals are very welcome.

The Government also wants to incentivise LPAs to determine applications in the statutory time limits. The White Paper states this may involve the automatic refund of the planning fee if an application is not determined on time. It is also suggested that some applications could be deemed approved if they are not determined on time (it appears that this may apply to schools, hospitals and GP surgeries). The devil will be in the detail of this proposal.

A further “incentive” is also provided to planning committees. Where applications are refused, it is proposed that applicants would be entitled to an automatic rebate of their application fee if they are successful at appeal. It will be interesting to see if Councillors take this on board.

Although these mechanisms sound encouraging, the Government is still clear that the cost of operating the planning system should fall on the shoulders of landowners and developers. Although not referenced in the White Paper directly, we understand consideration is being given to the introduction of a fee for proposing a site for designation through the plan process.

The Government intends that planning applications will continue to be funded through application fees. We may see an increase in these fees, although this has not been announced yet. The White Paper also suggests that part of the new Infrastructure Levy (see paragraph 6 below) could be used to fund plan-making.

The Government also wants PINS and statutory consultees to implement new charging mechanisms and to have new performance targets. We suspect this is an encouragement for PINS to charge fees for appellants’ use of the appeal system; however, no detail on these points have been issued yet.

Design and Sustainability

The design of developments will be addressed at both the national and local level. The National Design Guide (published October 2019), National Model Design Code (to be published this autumn) and the revised Manual for Streets (publication date awaited) will set the agenda at a national level.

However, the Government wants locally-produced design guides to set the parameters for development. These can be brought forward by LPAs, neighbourhood planning groups or applicants for large schemes.

The Government also intends to amend the NPPF to clarify that schemes which comply with local design guides and codes will have a positive advantage over those that do not. It is not clear exactly how this will work yet. It seems to indicate a presumption in favour of “beautiful” design.

The White Paper flags that the Government intends to replace Strategic Environmental Assessments, Sustainability Appraisals, Environmental Impact Assessments with a new streamlined system. The new system has not been published yet. It will be interesting to see if this streamlined system manages to both save time while also ensuring thorough assessments are undertaken.

To assist in the Government’s commitment to net zero carbon emissions by 2050, from 2025 new homes are expected to produce 75-80% lower CO2 emissions compared to current levels. Further, the Government’s ambition is that homes built under the new system will not need retrofitting to meet the net zero carbon commitment.

Developer Contributions

The White Paper proposes to abolish the current system of planning obligations, and replace it with a Consolidated Infrastructure Levy. The Levy would be set nationally, at either a single rate or an area-specific rate; however, it would still be collected and spent locally.

The Levy would be payable on occupation and be charged on the final value of a development. To enable LPAs to deliver infrastructure prior to occupation, LPAs would be able to borrow against the Infrastructure Levy revenues. However, LPAs would need some certainty over the developments that were coming forward to enable them to know how much they could borrow.

It is intended that the Levy would also be used to deliver affordable housing. However, where an LPA has a need for affordable housing, on-site delivery may be mandatory. The developer would be required to sell the units to an RP at a discount and this discount would act as a payment-in-kind – to be deducted from the final cash liability to the Levy.

It is unclear at this stage how the Government could successfully set the levy nationally at a single rate. Even an area-specific rate would need some flexibility to accommodate sites with significant viability issues and consideration of whether an LPA can set different rates for different areas.

This topic, in particular, feels light touch and further detail needs adding to the bones of this proposal.

Conclusion

The White Paper suggests the Government wants to move forward quickly with these reforms. The target is for new local plans, prepared in accordance with the new process, to be in place by the end of the Parliament (2024). This means the required legislation will need to be in force next year to allow 30 months for new local plans to be prepared. This is a challenging timeframe. To keep to it will mean legislation being introduced in early 2021.

Overall, the Government’s ambition to modernise the planning system is to be encouraged. If the local-plan process can be significantly shortened then that would be a real achievement. Further, speeding up decision-making and providing more streamlined modern processes should remove some significant hurdles from getting started on site.

Getting plans right and keeping them up to date has long been a major objective of the planning system in the UK. In practice the time to create a plan and the time to review a plan has been a major brake on meeting development needs.

Whilst the current proposals aim to address this, there is not only much detail, but also a need for appropriate safety valves and flexibility in case the new plans don’t proceed as quickly as intended, don’t respond to changes of circumstances, don’t get reviewed quickly enough and in case the amount of development and land identified for development don’t properly meet the development needs of each area of the country and the clear government objective of more and better development.

It will be critically important to see if LPAs have the capacity to deliver these proposals. The White Paper states that proposals will be brought forward later this year to improve the resourcing of planning departments. This will be eagerly awaited.

We recommend that all stakeholders should consider submitting detailed responses to the Government’s consultation, which closes on 29 October 2020.

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