Planning for the Future: Reforms to Watch Out For
With less than a month left to respond to the consultation on the Planning for the Future White Paper, now is a good time as any to remind ourselves of the major proposals for change and their practical implications.
The Current System
At the core of the current system is the principle that planning permissions should be decided in accordance with local planning policies, contained in local plans and other development planning documents, and material planning considerations.
Planning applications are usually decided by planning committees or senior planning officers, depending on the size of the development. When determining planning applications, planning committees have the benefit of officer’s reports which contain a technical planning assessment of the application and a recommendation of what the committee’s decision should be.
Members of the public, government departments and bodies, as well as various interest groups, have a right to make their views known, through consultation and representations when local plans are being made and individual planning applications are being decided. Planning determinations can be subjective and committee members, being elected councillors, can take into account the concerns of their electorate as long as they relate to relevant planning considerations. Therefore committee members can, and frequently do, deviate from their officer’s recommendations as to whether an application should be approved or rejected.
Unsuccessful planning applicants can appeal decisions to the Secretary of State for Housing, Local Government and Communities. Appeals are administered by the planning inspectorate known as PINS.
Development often creates need, in terms of infrastructure and this is met by developer contributions by way of Community Infrastructure Levies or infrastructure agreements – the most common of these are Section 106 Agreements, named after the same section in the Town and Country Planning Act 1990.
There is so much more to the planning system but the above should help people read the government’s reforms in context.
Here are seven proposed changes everyone should be aware of:
1 Rules Based System
The paper proposes a rules-based system whereby, the authority’s area will be divided up in the local plans into areas of growth, renewal or restriction. In growth areas, specific types of development will benefit from automatic outline planning permissions, which is an approval of the principle of the development. Developers of land in growth areas will only have to apply for approval of the detail of the development.
In renewal areas, developers will still have to apply for planning permission but will benefit from an assumption that suitable development, as set out in the local plan, will be approved. Also, if proposals in renewal areas comply with design guides and other criteria, they too could benefit from automatic or fast-track consents.
Development will still be restricted in areas such as the Green Belt, Areas of Outstanding Natural Beauty, conservation areas, local wildlife sites, areas of significant flooding risk and important areas of green space which could include gardens.
Currently local plans contain allocations as well as general policies on how to determine planning applications. The main difference with these proposals is the availability of automatic outline permissions for growth areas. The content of local plans will be limited to designations and standards specific to those designations while general development management provisions will be contained in national policy and guidance.
It is therefore crucial that everyone has a chance to participate in the local plan process as they will not be able to debate the principle of development at application stage in growth areas, and this is recognised by the government in the paper.
2 Local Plans
The government also wants to simplify and streamline the plan-making processes. This includes subjecting draft local plans to a single test of soundness instead of the current legal and planning tests and simplifying the environmental assessment procedures.
The paper outlines a five-stage process which is supposed to lead to the plans being adopted in 30 months instead of the usual up to five years. The paper also debates abolishing the right to be heard on the local plan and the possibility for Councils to assess plans themselves subject to auditing processes by PINS.
Local plans are proposed to be produced on a standardised digital model which will include an interactive web-based plan where people can search an area to find out what development is proposed within.
The obvious point is how the government factors increased engagement in the local plan into a more streamlined process.
3 Decision Making
The changes are geared towards dealing with planning applications more quickly and efficiently. Planning permissions have to be determined within certain statutory time limits. The government wants to curtail the right to extend those time limits by agreement, as is frequently the practice now.
The government also somehow wants to “integrate” the submission of planning applications with the validation process although it is not clear what they really want to do. Planning applications are validated when the authority has received all the information it needs to make a planning decision and the clock starts ticking in respect of the statutory time limit. It is unclear whether the intention is for the statutory time period to start when applications are submitted even if the information received is insufficient to make a decision.
The government is also considering whether applicants should receive a refund of their application fee if the applications are recommended for approval by officers, rejected by committee and successful at appeal. This would be a way of deterring committees from side-lining planning considerations in favour of the public views.
Other changes include reducing the amount of information received for major applications and expedited processes for routine and sympathetic changes to listed buildings and other historical assets.
The government seeks to increase the level of consultation and public participation in local plans while minimising disruption caused by objections to planning applications. The proposals include a switch to digital methods of consultation. This will for instance, include a digital template for planning notices.
5 Digitally Driven
The government will support the use of digital tools for publicising applications and local plans. The aim is to make it easier for people to understand, using visual and digital tools, the impact of proposed development in their area and for them to give their views through social media and other digital methods. Local plans will be produced with a standardised digital model. The government also wants to make sure that all planning information is available online.
6 Developer Contributions and Affordable Housing
The government intends to replace the Community Infrastructure Levy and Section 106 Agreements with a new national Infrastructure Levy. Section 106 Agreements are seen to be complicated and uncertain since each agreement has to be negotiated between the developer and the authority in circumstances where every authority has slightly different rules. The Community Infrastructure Levy is more standardised but is dependant on an individual authority deciding to use it and is also complex in terms of the legislation governing it.
This new levy will be a uniform national rate set for development above a certain level. The aim is for it to be more user-friendly as the authority will not have to prove a direct link between each development and the expenditure of the levy and authorities will be able to borrow against the receipts of future levies to fund infrastructure projects.
The levy will also be wider in that it will apply to some permitted development rights and a proportion will be reserved for other functions of planning departments such as plan-making and enforcement.
It has always been difficult to deal with affordable housing by contributions alone because of the need for covenants to govern how the housing is to be provided on site. One option in the White Paper is for the developer to deliver the affordable housing on site using standardised agreements. The developer’s obligation to pay the levy would then be reduced by the difference between the market price of the house and the discounted price it is sold for to an affordable housing provider. If the on-site affordable housing cannot be sold because of its poor quality, the developer may have to pay the levy anyway. If there is a market fail, the authority could allow the units to revert to market housing and the developer would then have to pay the rest of the levy to the Council for affordable housing.
The proposals are centred around a renewed effort to increase the importance of design and to generate development which is ‘beautiful’ as opposed to just being not harmful. On a national level, the government wants to produce a national design code, building on the design guide which they published in October 2019, as well as a revised manual for streets.
Local authorities will be required to produce design codes which will be binding on planning decision makers. Each planning authority will be expected to have a chief officer for design and place making. Design guidance will be required to be prepared locally with community involvement in order for them to be binding on decision makers. Where there are no local design codes, the national design code will be used for decision making.
From a development control perspective, there will be a "fast track for beauty” which is to be implemented in three ways. Firstly, the NPPF will state that compliance with the design code should lead to a swift approval. Compliance with local design codes could be a condition of a permission in principle. Finally, certain permitted development rights will be linked with compliance with design codes.
Paying for It All
The proposals include allowing a small proportion of the income derived from development contributions to cover overall planning costs including the preparation and review of local plans, design codes and enforcement activities.
The government also recognises that though it wants the majority of the new planning costs to be funded by landowners and developers, good planning also benefits the general public and therefore some of the reforms can be funded by general taxation.
It should be noted that many of the above proposals come with less radical alternatives.
It is difficult to deny that many parts of the planning system are unpredictable and complex. However, part of the reason for that is that local democracy is built into the system. Another reason is the inevitable tension of building enough houses and understanding the desire of local people to reject development which they feel impinges on their amenities.
Local plans have for a long time had policies stating what development goes in certain places, so the designations of sites is not exactly new. What is a shift is the fact that those designations will be more determinative. At the moment, the general test is to go along with the development plan unless material considerations indicate otherwise.
A significant part of the government’s task in implementing these reforms is to maximise engagement of local people as well as stakeholders in the local plan process and balance that against their ambitions to streamline the process.
In my view, this will require maximising non-digital as well as digital methods of consultations as people should not be excluded, based on their ability or desire, to access certain technologies.
Resourcing is an important issue in light of reduced funding to local authorities. Although streamlining the system may make it more cost-effective in the long run, the changes will need an initial boost in terms of staff and funding. It is reassuring that this is recognised by the government.
Whether you are a voluntary, developer, landowner or member of the public, everyone is affected by planning so there is still time to make your views known! At Lanyon Bowdler, we have the expertise to help you make sense of the rules, current or proposed, and to assist you in engaging the planning system.