Friday, August 29, 2014

“A Forward Looking Planning Manifesto”

It seems that the need for proper reform of the planning system, as distinct from the pointless political tinkering that we have encountered over the past 20 years or so, is becoming ever more widely recognised. London solicitors Addleshaw Goddard are the latest to add their voice to calls for a more fundamental approach to reform of the planning system.

Their recently published document – “A Forward Looking Planning Manifesto” is very much along the lines of what I and an increasing number of other planning professionals have been calling for – including an overall strategic plan at a national level (much more precise, and perhaps prescriptive, than the vague platitudes in the NPPF), as well as the need for strategic planning at the regional level (so wantonly abandoned by the present government) and a proper review of Green Belts. The need for proper strategic planning, which would include the setting of regional housing targets, is particularly urgent in view of the continuing failure of neighbouring planning authorities to co-operate meaningfully in developing their core strategies, particularly in relation to housing provision. As the authors say, this is necessary in order to counter "local political point scoring, skills deficits and NIMBY-ism".

However, a few of the ideas are, I suspect, too radical for any political party to countenance. For example, I find it hard to believe that the proposal to amalgamate the London Boroughs into just five massive super-boroughs will commend itself to the politicians. A similar proposal to create "metro-regional bodies" (enlarged regional or sub-regional authorities) may also prove controversial.

Addleshaw Goddard say that this manifesto has been informed by the views of "dozens of leading figures and industry experts, public sector figures and developers" which include not only private sector planning consultants but also planners in local government, as well as people in the development industry. This is further confirmation of the increasingly widespread view of those who actually have day- to-day dealings with the planning system that it cannot be allowed to stagger on in its present arthritic (or sclerotic) form. It seems that it is an idea whose time has come, and this will be a challenge for the incoming government in May 2015. It is timely that the political parties should be made aware of this now, so that they can take it on board in formulating their own manifestos for the next General Election.


Thursday, August 21, 2014

The planning system – the need for a real overhaul

The government’s current consultation on further changes to the planning system, coming on top of all the other changes made by this government and their predecessors, has prompted a number of people (including me) to call for a more fundamental review of the whole planning system, so as to sort out the dreadful mess that the politicians have made of the planning system.

The latest contribution to the discussion has come for Leonora Rozee, one of the most highly respected members of the planning profession who, before her retirement, was effectively the Chief Planning Inspector (although without the formal title which her role should by rights have had). Writing on the RTPI’s discussion forum on Linked-in this week, she said:

We are rapidly reaching the stage where no-one will actually have any idea of what our English planning system is any more. (Have we already reached it?). The only sensible solution is a wholesale review from top to bottom of why we need a planning system and what it needs to comprise, with the result set out in a single Act supported by such regulations, policy and guidance as are necessary to enable all to understand it. We now have a complete mess as successive governments have fiddled and changed what is there without thinking through exactly what it is they are trying to achieve - other than the much expressed desire for a simpler system with increased community involvement! If this Government want to get rid of it completely, then be honest and do so - not death by a thousand statutes, regulations, policies and guides.

I absolutely and whole-heartedly agree with those sentiments. I have often said that we need to take a sheet of plain paper and start again. On reflection, though, I don’t think we need entirely to re-invent the wheel. Lewis Silkin’s 1947 Act (shorn of its attempt to nationalise the development value in land) was a fine piece of work, the basic structure of which is still at the core of our planning legislation. It is all the detritus that the legislation has acquired in the subsequent 65+ years (and particularly in the past 20+ years, since the legislation was last consolidated in 1990) that is the problem. I tend to think of it like a ship that has gradually picked up numerous barnacles and other marine growth, so that now it can barely make headway through the water. The hull is still sound, but the ship badly needs its bottom scraped to remove all the accumulated muck and rubbish.

At the same time, there is a case to be made for codifying the leading judicial authorities on planning issues which have come to be recognised as an important component of our planning law. Just to take one example, the concept of the “planning unit”, which was definitively established by the judgment in Burdle ought to be written into the new Act. I was also going to suggest that the concept of “curtilage” should also be defined by the legislation. The formulation proposed in Sinclair-Lockhart’s Trustees would be the basis of this definition, as refined by Skerritts of Nottingham and by Sumption. However, we should perhaps remove the concept of “curtilage” from the legislation altogether, and substitute the planning unit as the area of land to be referred to in what is currently section 55 of the 1990 Act, and in Part 1 of the Second Schedule to the GPDO, as well as various other places in the planning legislation (both primary and subordinate) where the word “curtilage” is currently used.

There are numerous other examples of judicial authorities that ought to be written into the legislation, and I know from correspondence I have had with Dr Charles Mynors that he, and others, are very much in agreement on this point. Just such an exercise was carried out over a century ago, leading to the Sale of Goods Act 1893. We should certainly be capable of carrying out a similar exercise in relation to planning law in the early 21st century.

The problem, I fear, is that politicians simply do not see such an exercise as a vote-winner. They are only interested in gesture politics, ‘quick fixes’ that can be spun as dynamic action in a press release (so that the electorate can, they hope, be made to believe that ministers are ‘doing something’) but which achieve nothing in reality, beyond further complicating an already over-complicated planning system.

Nonetheless, I live in hope. If enough people tell the politicians that this is the real problem, and that the politician who really tackles it will go down in history as one of the great reformers (as Lewis Silkin did), then maybe they will finally grasp the point and tackle it.

Thursday, August 14, 2014

Proposed changes to the processing of planning applications

In this third post on the government’s recent consultation paper (“Technical Consultation on Planning”), I propose to take a look at what they are suggesting by way of further changes to the planning application process.

I wrote in May (“Validation nonsense continues”) that many of us who have to work with the planning system on behalf of developers will not take seriously the protestations of ministers that they are ‘reforming’ and streamlining the planning system, until the changes outlined in that earlier post are made - nothing less will do. Well, I am sorry to say that this latest set of proposals does nothing to address the issues which have caused concern to so many planning practitioners in recent years.

Parts A and B are narrowly focused on the involvement of statutory consultees in the process, including a specific proposal to notify railway infrastructure managers of planning applications for development near railways. This is followed by a brief and superficial suggestion, in Part C, that there might be a consolidation of the Town and Country Planning (Development Management Procedure) Order 2010 and a vague reference to the means by which the time taken in the various stages of the planning process could be separately measured, rather than the present measurement of the total time from making an application to its determination. This entirely misses the point. What matters is not the accurate measurement of the time taken in going through all the bureaucratic nonsense (which has greatly increased within the past 20 years) but urgent action to cut out all the unnecessary faffing about. Rather than being measured in greater detail, the process needs to be streamlined, which the government has signally failed to do, despite their claims to the contrary.

There are various different stages that can be identified in the application process. These include :

Pre-application consultation with the LPA
Community involvement
Submission of the application and supporting material
Validation (including requests for further information)
LPA’s consultation with neighbours and statutory consultees
Officer-level consideration of the application
Drafting of officers’ report to committee (or delegated report)
(including drafting conditions or reasons for refusal)
Determination of application by committee (or by designated officer under delegated powers)
Negotiation and execution of section 106 agreement (if required)
Issue of the planning permission
Submission of sample materials and/or further details required by conditions
Approval of materials and/or other details
Discharge of pre-commencement conditions
(Building Regulations consent - separate process)
Commencement of development

This is not intended to be definitive list, and readers can no doubt identify other steps in the process, but the essential message is that all these stages involve developers in significant time and costs, and there is considerable scope for cutting out a number of stages and streamlining this process.

Many developers have discovered to their cost that pre-application discussions are a waste of time and effort in far too many cases. It is often difficult or impossible to get planning officers to engage meaningfully with a proposal at the pre-application stage, and in any event no reliance can be placed on any views expressed by the officers at that stage, as it is all too likely that other (possibly more senior) officers may take an entirely different view when an application is actually submitted. The fees that are demanded by LPAs for a pre-application discussion do not represent value for money in many cases.

The requirement on the part of many LPAs that there should have been some community involvement in the formulation of the application involves an equally useless waste of time and effort. The response one gets to letters sent out in the neighbourhood (even where they contain plentiful information and illustrative details) and the response to exhibitions and meetings to explain the proposals is often minimal to non-existent, and the one or two responses that are forthcoming tend to raise points of minor detail or issues that are totally irrelevant to the application. The whole exercise is a useless waste of time not only for the developer but also for the local community. Neighbour consultations by the LPA after they have received an application are more than sufficient to ensure that local residents are aware of the application and that they have the opportunity to comment on it.

I have previously written about the information that must accompany a planning application. I won’t repeat myself, other than to state that the current rules are far too prescriptive. A very experienced planning consultant who, like me, has worked both in local government and in the private sector, agreed with me some time ago that the most effective improvement that could be made to the rules and requirements governing the submission of planning applications would be simply to repeal all the additional requirements that have been imposed in past 20+ years.

‘Major development’ should be identified as 50+ residential units or more than 2,500 sq m of gross retail floorspace. Industrial development should only be considered as ‘major’ if it falls into Class B2 and is within 400 metres of any residential property. All other development should be entirely exempt from the need for a Design & Access Statement. There should be a searching review (at ministerial level) of the justification for ecological reports, archaeological reports, Environmental Impact Assessments, noise impact assessments, flood risk assessments, heritage statements, land contamination assessments, lighting assessments, photographs or photomontages, sustainable construction statements or checklists, etc, etc, etc. In light of that review, strict (and restrictive) criteria should be laid down in the DMPO as to what information can legitimately be requested by an LPA in particular circumstances, so that only if such criteria do apply can the relevant type of information be required to accompany the planning application. This nationally uniform set of criteria in the DMPO would replace the local validation checklists individually adopted by LPAs, in contrast to the current position, where there are numerous demands for specific technical information and reports which are entirely inappropriate and unnecessary in many cases.

The whole concept of ‘validation’ should be entirely abandoned. It is of comparatively recent origin, and does not feature in the primary planning legislation. A planning application should be considered complete if an application form is submitted with payment of the application fee and is accompanied by such other documents as may be required by the nationally adopted criteria set out in the DMPO, referred to above.

The legal duty of the LPA (under section 69 of the 1990 Act) to enter the application on the planning register requires no separate ‘registration’ process. Time should run for all purposes from the day after the completed application documentation and fee are received by the LPA, and rules (again, written into the DMPO) should make it clear that the LPA is under an obligation to begin processing that application from that moment, irrespective of the date on which the purely administrative task of entering it on the planning register is completed. The essential point is that the application does not need to be registered in order to make it a valid application; registration is merely a matter of record keeping, which should not affect the processing of the application in any way.

There should be more clearly defined criteria that the LPA must follow in carrying out consultations. There should be a means (again, within the DMPO) of reliably identifying which neighbours and which statutory and internal consultees should be notified of the application, and which should not. There may perhaps be a case to made for prohibiting the consideration of representations made after the specified period (21 days) has expired, as well as a prohibition on entertaining representations made by other departments within the authority, if these are not departments having a legitimate interest relevant to planning in the subject-matter of the application. For all these purposes strict criteria should be written into the DMPO.

I have already explained my views on the use of conditions (which is dealt with elsewhere in the consultation paper). The problem for many years has been that, apart from the legal tests which have been established by the courts, the guidance has taken the form only of ministerial policy in circulars (most recently in 11/95 and now in the on-line Planning Practice Guidance). As a result, these requirements have been widely ignored by LPAs. The only reliable way to secure a uniform approach by LPAs to the use of conditions would be to write the well-established principles into the DMPO, so that they become mandatory rules which LPAs are bound by law to observe. The new rules might usefully restrict the circumstances in which approval of materials and other minor details can be required, and should also limit the circumstances in which pre-commencement conditions can be imposed.

Where conditions do require further approvals, the deemed discharge of the condition after a strict time limit following an application for such approval should apply, as the government has proposed, but it should be automatic and should not require the service of a further notice by the developer. The abolition of application fees for this type of approval would be a further incentive to LPAs not to impose such conditions unless they are really necessary.

Finally, it should be entirely unnecessary for conditions to be formally ‘discharged’. This is another comparatively recent innovation; I can certainly remember a time when conditions were simply complied with, and that was that. Some LPAs go to quite unnecessary trouble nowadays to formally determine applications for the discharge of conditions, even issuing a formal decision notice. Such bureaucratic nonsense was entirely unknown in my days in local government, and I can see no need for it.

The sad fact is that, despite their claims to be streamlining and improving the planning system, DeCLOG ministers have entirely failed to tackle these issues. The present consultation exercise probably represents their last opportunity before the General Election of achieving major reform of the planning system. They have botched it.