The implications of government proposals to speed up planning: The Planning Briefing

We examine measures promised by ministers for the planning White Paper. By David Blackman.

Housing secretary Robert Jenrick (pic: Getty)
Housing secretary Robert Jenrick (pic: Getty)

It was only in mid-March when housing secretary Robert Jenrick outlined the government’s ideas for changing planning, although the coronavirus outbreak makes it feel like a lifetime ago.

Jenrick laid out his ideas in a document titled Planning for the Future. He painted his proposals as a radical revamp of the planning system, which he described as “out of date” and rooted in legislation drawn up after the Second World War.

Expectations of a fundamental shake-up had been heightened by the publication of a report in January from think-tank Policy Exchange that called for sweeping change. Its author, Jack Airey, recently became No 10’s housing advisor.

One section of Planning for the Future comprised an explanation of six measures that the long-promised planning White Paper would contain to “speed up the planning system”. Below we explain them, and their potential implications.

Planning fee changes

What is new?

The paper heralds a new framework for the planning fees charged by local authorities. The professed aim is to ensure planning authorities are ‘properly resourced’ and therefore able to improve the speed and quality of decisions. The government says the new fees framework will be linked to a new performance framework to ensure “improvements across the planning service for all users”.

Practical implications

Local authorities were allowed to raise planning application fees by 20 per cent in 2018. Jenrick told a fringe meeting at last year’s Tory party conference that the government was looking at giving councils more flexibility to raise fees “in return for a good-quality service”.

While it may seem counter-intuitive, higher fees command widespread support among the developers who would have to pay more. “Across the planning world there is a desire to ensure that local authorities are properly resourced and can provide a proper service,” says Alex Woolcott, associate in the planning team at solicitors Winckworth Sherwood.

He argues that developers and registered housing providers will accept paying higher fees if they get a better service and greater certainty about decision-making in return. He suggests that increased income for planning authorities could allow them to employ additional case workers to push applications through more quickly.

Chris Findley, assistant director of planning at Salford City Council, says greater resources could also help planning authorities to attract trainees by offering to pay RTPI membership fees, which is common in the private sector.

Findley says the Greater Manchester borough has recently grown its planning team, but worries this often means taking staff from other councils. “The issue is whether you are all chasing the same people,” he says. “You need to get people through the education system.”

As for the promise of an associated performance framework, Woolcott is unconvinced it will improve standards. He fears that allowing high-performing authorities to charge more could create a two-tier system. “It needs to be carefully judged so that it doesn’t have unnecessary detriment on certain authorities which need all the help they can get,” he says.

According to some legal and private sector commentators, reform of the planning fees structure could place a question mark over the future of planning performance agreements (PPAs), under which applicants pay an extra fee in return for an agreed timescale for determining their application.

But Woolcott believes it would be a surprise if PPAs were swept away “entirely” – the agreements have a role to play in large developments, the handling of which may impose a substantial burden that smaller planning authorities would be hard pressed to deal with without associated extra funding, he says.

Sarah Bevan, programme director, planning and development at London First, which represents businesses in the capital, backs the idea of the performance-related framework. She says: “It will bring more clarity and transparency into the system.”

Application fee rebates for successful appellants

What is new?

Probably the most controversial element of the government’s plans is the idea of automatic rebates for fees when planning applications are overturned on appeal.

The government says that the proposal is designed to promote “proper” consideration of applications by planning committees. Where applications are refused, applicants will be entitled to an automatic rebate of their application fee if they are successful at appeal.

Under existing legislation, applicants can reclaim costs if they win an appeal, but it is difficult to do so in practice, says Woolcott. “Something fundamentally unreasonable has to happen before someone can claim costs,” he says. The success of an appeal will often hinge on a small point, he adds, reducing the likelihood that the committee can be proved to have acted unreasonably. In addition, inspectors are often reluctant to award costs against planning authorities, says Stuart Andrews, partner at law firm Eversheds Sutherland.

Practical implications

Such a rebate would “give councillors pause for thought”, says Woolcott. “It is certainly a good tool to hold local authorities to account and avoid having decisions not made on planning grounds but purely political grounds.”

Stuart Baillie, head of planning at consultancy Knight Frank, agrees. “This is about making committees take officers more seriously, and thinking about consequences of allowing things to go to appeal,” he says. And the rebates, which councils will find hard to recover from other sources, could be substantial, says Findley: “On big schemes, the fee income is significant.”

But while these fees may be fairly hefty for the local authority, they are fairly small beer for a developer compared with other costs that go into an application, says Andrews: “Fees are very modest: time delays is where costs rack up.”

He adds that it is wrong to assume that a successful appeal means that the authority concerned has irresponsibly or wilfully made an unfounded decision. “There may be significant technical concerns,” he says, such as unresolved highways issues.

Woolcott says the proposal misunderstands what motivates local councillors, who know they could easily be voted out for taking a decision that goes against the grain of local public opinion. “If there is a concern from members that this is unacceptable from residents’ point of view, I am not sure handing back planning fees comes into play,” he says. The very idea of automatic rebates is “missing the point”, says Andrews. “There are more significant and structural problems with the administration of planning authorities that go far deeper than that,” he says. Baillie agrees. “It doesn’t fundamentally address the issue of more bums on seats in planning departments, which is the only thing that will speed things up.”

More use of zoning tools to support development

What is new?

The policy paper says the government will simplify the process of granting planning permission for residential and commercial development through zoning tools, such as Local Development Orders. It says the government will trial the use of templates for drafting LDOs and other zonal tools and financial incentives to support their use.

Practical implications

Introducing US and Continental-style zoning, within which development would be allowed to proceed if it meets certain ground rules surrounding issues such as height, was one of the key proposals in the Policy Exchange’s report.

However the government’s proposal looks like a “watered down” version of what the Policy Exchange proposed, says Woolcott. While it talks about zoning, the policy paper’s proposal essentially comes down to incentivising the greater uptake of LDOs, which have been a part of the planning furniture since 2004.

So far there has been limited uptake of LDOs, however. Where they have been adopted, says Woolcott, it has been primarily for commercial and infrastructure uses, such as business parks and renewable energy projects, rather than creating new residential neighbourhoods. “The current appetite for them is not huge,” he says. “But perhaps that reflects the amount of work that goes into preparing an LDO.”

He believes the government’s proposal that it create templates for drafting LDOs might help by ensuring that councils no longer have to reinvent the wheel every time they draw up an order. But he worries there are issues with trying to square the LDO-style approach with recommendations in the Building Better, Building Beautiful Commission’s final report that planning authorities should take a stricter line on issues such as design quality and reflection of local design traditions.

Accommodating the recommendations will involve building flexibility into the templates, says Woolcott, which might make them more labour-intensive than the government is suggesting. He says a balancing act would be needed to produce templates flexible enough “to get the quality of design you want without turning LDOs effectively into outline planning permissions that then require considerable detail to be implemented”.

And there is a question mark over how much time they would save, because they could shift disputes to an earlier stage in the planning process, when the LDO is being drawn up, rather than occurring at the point the application is determined, he says.

Findley, who has hosted planners on visits to Salford Quays from parts of Europe where zoning is widely used, says their experience suggested that zoning was “quite cumbersome”. The danger of the zoning proposal is that it ends up as a halfway house that satisfies no-one, says Andrews: “You either embrace a completely different system of planning administration and political engagement, or stay with what we have got,” he says. “To refer to LDOs is at best misleading, because it’s not a fair reflection on what zoning really is.”

Clarifying land ownership

What is new?

The document says government will act to make it clearer who owns land by requiring greater transparency on land options – agreements between a developer and a landowner giving the former the right to buy the latter’s land at a specified point in the future. It says the government will explore “wider options to encourage planning permissions to be built out more quickly”.

Practical implications

Woolcott says he is “not sure” that publishing options arrangements will do much to speed up the process, especially when it is dealing with private and commercially sensitive legal contracts. Legal minds are likely to find a way to sidestep new rules which are designed to improve transparency, says Andrews. For instance, the contract between landowner and developer could include joint venture arrangements that would sit behind the published options. “There’s a need to protect private commercial arrangements,” he says.

Make compulsory purchase more effective

What is new?

Planning for the Future says the government will consult on legislative reforms to speed up the decision-making process for compulsory purchase orders (CPOs) “to help facilitate land assembly and infrastructure delivery”. Among the proposals are: statutory timescales for decisions, ending the automatic right to a public inquiry, encouraging early agreements on compensations, and exploring the scope to remit more decisions back to local authorities. In addition, the paper says MHCLG will introduce further support and expertise, to bolster authorities’ confidence in deploying CPOs.

Practical implications

The commentators contacted by Planning said the mooted changes are largely technical.

Remitting decisions back to local authorities could only be done when there were no objections in principle to the CPO, says Woolcott. “It will be important to ensure there is an independent third party who can vet whether it ought to be granted to the local authority,” he says.

Bevan agrees legislation surrounding CPOs needs to be reformed, but says the bigger problem is resourcing for this function within local authorities. In its recent report on regenerating high streets, London First proposed the creation of a CPO unit within the Greater London Authority, into whose expertise boroughs across the capital could tap. Bevan says: “Local authorities don’t have the resources to invest in CPO just in case there is an opportunity in their borough; they don’t have the expertise in-house.”

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