Legal Report

Uncertain times ahead as localism presses forward.

High noon for the planning system chimed last month with publication of the white paper Local Growth - Realising Every Place's Potential.

The DCLG business plan for 2011 to 2015 followed with a timetable for implementation. If brought forward in their current form, the proposals will dramatically change the dynamic of the planning framework.

The document identifies the current system as being "the wrong way round, alienating communities through centrally imposed policies and targets". It adds: "As a consequence, the planning system is often seen as a barrier to development, despite the desire of almost every local community to see new homes, more jobs, extra investment and a better local environment."

It would be hard to find anyone with any knowledge of how the planning system operates who agrees with this analysis. If the justification for reform is based on unsound reasoning, there is every prospect that the responses might themselves be flawed.

The proposed national planning framework (NPF) will be essential in filling the gap created by the loss of regional guidance. An NPF already operates in Scotland and provides an effective spatial strategy.

Sustainability definition stalls

The white paper proposes a presumption in favour of sustainable development for all planning decisions. In Scotland, the objective of contributing to sustainable development is a requirement for producing the NPF and development plans.

At individual application level, however, it was regarded as "too difficult to determine with legal certainty whether or not developments proposed were sustainable". It will be interesting to see whether sustainable development can be defined with sufficient precision to apply in England.

Devolution of planning powers to local government will also be progressed. Despite this month's High Court decision in favour of CALA Homes, the DCLG anticipates that future housing targets will be set locally under the provisions of the localism bill.

This is already the case in Scotland, where few house builders would accept that sufficient land has been allocated under this system.

In England, financial incentives will be provided to promote housing growth and support business and renewable energy development. However, it remains to be seen how communities will react to a major greenfield proposal in circumstances where financial considerations appear to be a key driver for politicians.

Localism will be further supported through neighbourhood plans and community rights to build without planning permission. Is there really an appetite for such initiatives? The government also proposes measures for communities to protect green areas. There is an inherent tension between providing financial incentives and giving communities increased control, which is likely to act as a constraint on development.

System functions raise tension

These conflicting objectives are illustrated by the white paper's description of the main functions of the planning system - to allow people to shape their communities, including the protection and promotion of environmental interests, while providing sufficient housing and supporting economic development. The document fails to recognise both the existence of this tension and the role of planning in resolving it.

There have been suggestions that applicants' rights to appeal will be reduced. These have existed since the inception of the planning system and were intended to counterbalance the nationalisation of development rights.

Restricting appeal rights will increase the importance of the courts in resolving conflicts. In 2009-10, 53 per cent of appeals heard at public inquiry were upheld, along with 39 per cent at hearings. This shows that a significant number of refusals of larger applications were unjustified.

Overall, it is hard to envisage how this new planning system will work in practice. Even if local politicians seek greater growth, communities will have powers to limit proposals or to seek protection from development. The reforms will create more market uncertainty when the development industry is almost at a standstill in many parts of the country.

Local authority planners may be given more powers by one hand of government while the other hand takes them away. Significant cuts affecting resources could undermine their ability to assume new responsibilities. Good, bad or ugly, these factors suggest that reform represents a significant gamble. The bill will clarify how big this gamble will be.

Colin Innes is a planning partner at Shepherd + Wedderburn.

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