Planning For Change: Government White Paper

Background

The Government has now published its long-promised Planning White Paper which can be viewed at https://www.gov.uk/government/consultations/planning-for-the-future. This promises to reinvigorate the planning system through a sweeping set of reforms that are now out for consultation until 29^th October 2020.  The following article seeks to summarise the key recommendations, our views and the next steps. The White Paper proposes significant changes to the following:

• Local Plans and Land Allocations;
• Standardised Housing Need;
• Role of Design;
• Section 106 & Community Infrastructure Levy; and
• Running the System.

These are set within what are described in the Paper as three Pillars:

1. Planning for Development;
2. Planning for Beautiful and Sustainable Places; and
3. Planning for Infrastructure and Connectivity.

This consultation was published at the same time as a separate consultation on changes to the current planning system. We comment on that paper here.

Local Plans and Land Allocations

It seems right that the Paper starts with proposals to improve Local Plans, as the current system is clearly not working, based on the rate of Plans being adopted and how quickly they can become out-of-date. The proposal is for slimmed down Local Plans which are to be adopted within 30 months through a series of measures.The ability to use Plans will also be improved.  Development Management policies will in general be removed at a local level and moved to national level, with area specific design coding and rules based Local Plans to fill in at the local tier. This will undoubtedly remove a huge amount of repetition which currently exists in Plans and the timescales are welcomed.  We also consider that design coding can be a useful and effective tool in guiding development more effectively albeit it is not entirely clear how a landowner/developer can properly engage in the production of Design Codes to influence their site and scheme.  This and other detail will only follow once detailed legislative and guidance is published.The proposal to reform Local Plans is also based on a tripartite division of land into Growth, Renewal and Protection zones. Outline planning permission for forms and types of development specified in the Local Plan will be granted automatically in Growth Areas.  Renewal areas will include areas such as Town Centres.  Protection zones will be those areas such as AONBs and Green Belt where development will be restricted and the Local Plan will explain what is permissible.  Such areas on the edge of urban areas or in standalone previously-developed locations are often those where development pressure is focused so it will be interesting to see if this means a restriction in development that can take place compared with the present approach of the National Planning Policy Framework (NPPF).This contains the most radical change, with the areas suitable for development in Growth areas given approval for the principle of development by the adoption of the Local Plan.  A detailed permission could then be secured at a later date but the principle would have been established. The rules based Local Plans will allow for more to be permitted in the Local Plan, rather than left to the detailed approval stage. A presumption in favour of development would be given in Renewal areas for uses specified in the Local Plan as suitable for the area. However, what the Government has in in mind is that Renewal areas would be suitable for renewal, regeneration and some development, such as gentle densification.  This is a radical approach.The proposal is for the introduction of a single statutory sustainability test, but it is not clear exactly what this will be and opens up questions surrounding what is sustainable development for the purposes of decision making in planning and whether it needs re-defining beyond that which we currently known as paragraph 11 of the NPPF.The proposed removal of the soundness test and duty to cooperate is interesting as many Local Plans have failed on this and this is where much of the delay has occurred. Certainly agreements between Local Planning Authorities (LPAs) are hard to come by or not necessarily accepted by Examination Inspectors which can lead to delay. This may allow for a speedier process for Local Plans, but is interesting to note that further consideration is being given to how to plan for strategic cross boundary issues which is a welcome re-introduction to the system following the abolition of regional planning.It is possible that the proposals will change the location in the planning process where pressure is felt by the system. In planning there is always a balance between different stakeholder interests. Currently that is dealt with at application stage, but in our view this proposal will likely change that to deal with more issues at the Local Plan preparation stage. This may cause tension with the desire to see Local Plans adopted within a 30 month timescale. However, the full benefit will not be received because detailed approval will still be needed through an application to the LPA. Although the principle of development will have already been approved, in our view that is likely to result in many of the current problems arising, but perhaps to a lesser extent or with less vigour.

Standardised Changes to Housing Numbers

It is clear that a national political agenda has provided the backdrop to this change as a result of a promise to deliver a step change in housing provision by the end of the parliamentary period. Essentially what we will see is a return to setting housing numbers by central government, the most likely outcome of which will be a national plan for housing which in turn delivers a binding requirement for housing delivery for each area. This will remove the lengthy process of providing an evidence base for housing need and will deliver certainty and speed for some stakeholders, which is likely to be welcomed.It will be interesting to see how the fix of housing numbers to provide certainty balances with the flexibility required to deal with local circumstances, for example where a LPA has large swathes of Green Belt or Conservation Areas. How will those constraints be captured in any national housing requirement?Whilst the certainly over housing numbers is welcomed we question where the opportunities to challenge housing numbers may arise for developers and whether it might make applications in some parts of the country a lot less flexible and open to promotion. The changes also give the appearance that the Government is floundering on the proportions of housing to be located across the Country. The proposal seem to be a backward step to focusing more housing in London and the South East and less in the North. The proposed housing requirement for London seems unattainable, given current housing delivery numbers.

 Role of Design

Increasing design quality was always going to be a key theme of the White Paper following the publication of the National Design Guide and the Building Better, Building Beautiful Commission Report.Beauty is a key term in the paper, but is a very subjective issue. The paper introduces the idea of 'Provably locally-popular' design codes. For these design codes to work in practice it will be important that landowners or developers have an opportunity to influence the content of these but will engagement with local community and stakeholders only slow the system down again but in a different way?The forthcoming publication of the National Model Design Code is much welcomed. The National Design Guide was low on detail so this should hopefully offer progress.   The greater use of design guides and codes is also important as these offer detail and guidance that is often missing leading to protracted negotiations in areas of subjectivity.  Whilst these can often be seen as areas of opportunity, that too can lead to delay.  The only risk is where a scheme falls outside the parameters of a Code, they are not updated regularly or where it restricts development to a new entrant in the local area seeking to evolve a development site.  There is very little detail on offer to answer this question at present so we will need to wait and see how this develops.The proposal introduces the concept of “net gain” rather than just no net harm which as a concept should be welcomed. However it needs to be introduced in such a manner that the gain is not seen to be at the cost of the developer / promoter as too often such terms (e.g. biodiversity net gain) are introduced as a threat rather than an opportunity.

 Section 106 & Community Infrastructure Levy (CIL)

The document proposes the abolition of Section 106 agreements against a criticism of the time spent negotiating agreements and the “dark art” of viability discussion. The proposal is to replace this with a nationally set infrastructure levy which would be calculated as a fixed proportion of the final development value (or an assessment of sales value if development is not sold). The levy would be paid at the point of occupation rather than the current system of commencement, but based on a rate at the time planning permission is granted. It would apply to all use classes and to permitted development rights. The proposal is also to retain the Mayor CIL.The removal of viability work would help to speed up the planning process. However the fixing of a levy could significantly affect the amount of levy in low value areas. The proposal for it to reflect 'average' build costs is also concerning as this would be extremely difficult on a national levelAs opposed to now the levy would include affordable housing. On site provision or on-site or off-site land would act as an offset against the levy (we note that there is not much clarity about offset for other works in kind). The inclusion of affordable housing will reduce some of the challenges in agreeing Section 106, hopefully speeding up the process.We query what happens with the other items that a Section 106 can cover such as securing scheme specific infrastructure and improvements, sustainable travel methods, encouraging employment of local people, providing retail units at affordable rent. A Section 106 at the moment is not just a levy. Much more detail is needed to understand the implications. It would seem for this to work more would have to be covered by planning conditions and it is likely that this may require legislation to change what can be secured by conditions, together with changes in national policy and guidance on the use of conditions.Has this reform missed the point though?  Practice has identified the need for improvement in terms of negotiation, setting, collection and spending, along with delays caused by the Section 106 process.  The proposed abolition of Section 106/CIL and replacement with the single Infrastructure Levy may however to only lead to greater complications down the line on how development is valued, affordable housing is secured and developments are adequately mitigated through specific improvements.  Far more detail is necessary before its full implications and advantages can be introduced and understood.  We are also consider it surprising that the alternatives to the Government's proposals in the White Paper do not include reform of the Section 106 system. Therefore, the consultation is not asking for responses on whether the Section 106 system should be retained and improved. That seems to indicate the Government has largely made up its mind to replace Section106 agreements with a different system.

Running the System

There is a significant focus in the Paper on how to streamline the process for securing planning permission via the Local Plan reforms and proposing a much more streamlined and digitally enabled end to end process.  This includes using the 8 and 13 week deadlines as firm deadlines; using new software to digitise the process; and seeking to introduce a more standardised approach to reduce error and cost. This suggests the automatic refund of application fees where they have not been determined within the time limit and a deemed approval for certain types of applications if they are not determined in a timely manner.  It is also suggested that there will be a reduction in the number of appeals through the new Local Plan process and where applications are refused, applicant have an automatic rebate of their fee if the appeal is successful.  It is also promised this will reduce ambiguity and the scope for legal challenge.As part of an overall streamlining there is likely to be fewer requirements for assessments.  There is to be a separate consultation in the near future on reforms to Environmental Impact Assessment, which the Government says is about streamlining the process and not reducing standards. This has faced criticism from environmental groups and the like. However the detail will be interesting as it still needs to satisfy UK and international law and treaties. We consider that rationalising the process and making work proportionate has the opportunity to make it more meaningful.Ultimately the ability to operate the planning system fairly and efficiently relies on resourcing and funding, along with ensuring the structure of the system and processes is well designed.  These reforms are all welcome in principle but can only operate in our experience if there is much greater support for Local Authorities and other stakeholders in the system.  There is a section towards the end of the Paper on making sure the system has the right people and skills.The challenge seems to be set more towards such bodies being more responsive and outward looking rather than promising fundamental support to achieve the change and scale of ambition set by the Paper.  It is also proposed that the cost of the new system should be funded by the beneficiaries - landowners and developers, rather than taxpayers.  A new funding route appears to be offered by the new development contributions system but otherwise there are no firm proposals for improving the funding of the system. This is promised as part of the next Spending Review.  Again we need to wait and see.

Next Steps

The Paper is light on detail and presented in such a way as to suggest reform can be fast paced and easy to introduce.  We support the need for change and intent but the ambition of the Paper is perhaps misleading in terms of how it can actually be achieved and by when.  It is important to remember that nothing has changed as yet and as compared with historic reforms the detail will emerge over the next 1-3 years.Changes will require primary legislation and regulations plus updates to the NPPF and Planning Practice Guidance (PPG) in due course.  This is particularly the case for more complex areas of the current system such as CIL and Section 106.  It is unclear when the changes will be introduced so we will need to watch this space for the detail and an indication of the timetable and those reforms that will be progressed once the consultation closes in October.The proposals have been in the pipeline for some time and pre-date Covid-19. They come on the back of the Government's consideration of the economic think tank report produced by the Policy Exchange called “Rethinking the Planning System for the 21st Century”. Covid-19, has given greater impetus to progressing the more laissez faire style changes quickly, but the risk is that they are being progressed with less thought, rigour and consultation than might normally be expected.There is already emerging some powerful voices and bodies that are raising concerns with the proposals. Like with the NPPF, it is entirely possible that they may be able to persuade the Government to water down the more radical elements of the proposals.We will keep you updated as the changes occur and advise on any implications.  In the meantime, we would be pleased to advise further on any of the proposed reforms that are of interest and/or concern and should you hold views on the proposals we would be happy to assist with any consultation responses to be submitted by the 29^th of October 2020.

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Mark HarrisDirector 0345 404 4102mark.harris@freeths.co.ukRobert BrucePartner 0345 128 6958robert.bruce@freeths.co.ukPaul BrailsfordPartner 0345 050 3676paul.brailsford@freeths.co.ukLiz YoungAssociate 0345 050 3677liz.young@freeths.co.ukNatalie BullinLegal Assistant 0345 404 4198natalie.bullin@freeths.co.ukStephanie GozneyAssocicate 0345 166 6293stephanie.gozney@freeths.co.uk