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07/02/2020

Legal landscape: Will bypassing councils make planning decisions quicker and more effective?

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A recent Policy Exchange report into planning reform envisages a zonal planning system in which development decisions bypass elected members and council officers. Will this lead to quicker and better decisions? Tristan Ward and Ben Arrowsmith are sceptical

On 28 January 2020, the media reported on proposals for reform of the planning system from Policy Exchange, the centre right think tank (Reshaping the planning system for the 21st century (pdf)). The proposals included the eye-catching suggestion that ‘councillors could lose their powers to veto housing applications’. It was reported that the proposals are being seriously considered in Downing Street. So, what are they?

Policy Exchange recommends that all land is either in a non-development zone, or in development zones where development must be permitted where it complies with certain rules. These rules are to relate only to the form of development, and how it retains and adds to an area’s sense of place. Development zones will include existing urban areas and urban extensions made possible by improved infrastructure. In non-development zones, minor development only will be permitted.  

Zones should, in general, have no reference to specific land uses. Policy Exchange expects that, if carried out, use of buildings and land could change with much greater flexibility than under the current system. The local plan would be ‘a development framework rather than an end state vision’. 

The designation of areas as 'development zones' or 'non-development zones' will depend on "metrics that determine whether land has good access potential, whether new development would cause environmental disturbance, and the potential for an existing built development to expand". 

Policy Exchange acknowledges that certain uses must be protected, for instance use of "natural or heritage value".  It is also acknowledged that certain uses need to be separated.  The rather striking example given is a quarry next to a children’s playground. 

 

"Local politicians and their electorates’ wishes are seen to be the impediment"

 

 

 

 

Policy Exchange proposes that applications are considered by reference to the rules for the relevant zone, effectively by reference to a checklist and without reference to a democratically accountable structure exercising planning judgement. Local politicians and their electorates’ wishes are seen to be the impediment. Applicants would have a right of appeal to the Planning Inspectorate, but only by reference to the zone rules. Decisions would remain susceptible to judicial review. The only role of the planning authority would be to set the rules applicable in the zones.  

If implemented, would these proposals result in quicker decisions?

Policy Exchange say the rules should:

1    "be a framework";  
2    "be clear and non-negotiable, relating to development form and layout";
3     "reflect the ambitions of the local public";
4     where possible, be “empirically based”;
5    "refer to land use only to delimit harmful uses or uses with natural or heritage value".

In parallel, local plans should have the central aims that real estate should be affordable and travel within a locality should be fast and cheap.  Accordingly, local plans should set out what infrastructure is required, how it can be financed, and the effect on land prices and rents. Like in the Conservative’s manifesto of Autumn 2019, how infrastructure should be delivered as land is developed and uses change or intensify, is not explained.  

 

"Reducing planning decisions to a checkbox exercise could certainly speed up decision making but it may well not be as simple as that"

 

 

Policy Exchange also say "It is vital that local plans ensure the provision of ‘public goods’".  But what constitutes a public good is a value judgement, not easily reducible to metrics. It may be productive to attempt to attribute monetary value to public goods and natural capital such that the costs of providing and protecting them and the natural services provided by them are captured in the metrics governing zoning decisions, but accountability is necessarily more limited without local democratic process.

Reducing planning decisions to a checkbox exercise could certainly speed up decision making but it may well not be as simple as that.  

Some ‘rules’ will be simple to check. However, ensuring, for example, compliance with a rule requiring contamination to be mitigated is not a speedy exercise: detailed analysis of the problem needs to be presented and understood and the decision maker must be confident that proposals put forward are sufficient to resolve the problem. That requires time consuming interaction with the developer. Additionally, a rule that says consent for housing may not be granted unless there are sufficient local school places available seems to be outside the philosophy guiding the proposals.  

How are such limitations to be squared with the requirement that rules reflect the ambitions of the local public? 

Notably, the Policy Exchange proposals do not seek to address the problem of deliverability of houses once consent has been obtained as examined by the Letwin report (Independent review of build-out: final report (pdf)). Instead, reducing land price is “very much the point of the exercise”. The proposed reforms will not have this effect unless much greater areas of land are made available for development, especially where supply of developable land is currently limited. It is not surprising that Policy Exchange also recommend that “Green Belt and Open Countryside land use designations should be reviewed to clarify what purpose they are supposed to be serving and whether it is still justified”. But what will voters think in, say, Sevenoaks District, which is 93 per cent designated green belt? 

Tristan Ward is a partner and Ben Arrowsmith an associate with BDB Pitmans 

Photo | Shutterstock

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