Monthly Archives: August 2011
Allegra Stratton in the Guardian has a story which really needs to be read rather than summarised.
It is titled ‘Britain isn’t building houses – and that sends shivers down coalition spines’
The National Housing Federation has produced forecasts perfectly aimed to needle the government pysche, particularly the Tory lobe. It said home ownership will soon slump to levels last seen in the mid-80s before Margaret Thatcher’s right-to-buy policy transformed Britain into a property-owning democracy.
“This is pretty traumatising stuff …” one Downing Street aide said “… to preside over the unravelling of right-to-buy.”
Of course he must have meant the unravelling of Nigel Lawson’s Property Owning Democracy.
young people are fearful about what the future holds for them and this is reinforced by the impossibility of getting on the housing ladder. Their parents and grandparents are also fretful about the prospects of their descendants. Rather than wealth cascading down the generations we have anxiety flowing upwards.
A common mea culpa inside No 10 is that they have not yet done well by this demographic and in particular, their housing prospects.
In the housing debate, a double downward spiral comes out of banks not lending. Builders don’t fork out for bricks and materials so housebuilding stops, causing demand and prices to shoot up. At the same time mortgages are disbursed less freely, demand for rented properties increases, so rents rise and thus saving for deposits gets harder.
As one Downing Street aide put it to me: “It was our inability to build houses that led to the last three recessions and there are early signs it could be behind the next one.”
In a mark of how seriously ministers are taking this issue, the mid-parliament review by No 10 strategy chief Steve Hilton has concluded that housing is one area where additional legislation might be needed and so they are all working on a coalition housing strategy to be rushed out in November. “The PM, the chancellor and Clegg are all pitching in with ideas,” one Downing Street source says.
With no real housing specialist at the number 10 policy units or the Cabinet office this is worrying, potential for gimmicks rather than fixing the deep underlying problems.
Inside government, the debate isn’t really about planning – they hold out great hopes for their reforms, but know they won’t pay off for years to come. In any case, as one government aide points out, housebuilders already have five or six years of approved planning permissions in hand.
And the debate goes beyond the green belt. In the words of one Lib Dem: “In terms of the hierarchy of needs housing demand is above the green belt.” If the number of houses in the UK were doubled tomorrow we would only go from 9% of land being built up to 10.5%.
So within Whitehall the debate is less about planning and where things should be built, and more about getting them built in the first place.
This all sounds ex-post facto to me. They held great store for the reforms and now find to their horror than abolishing Regional Strategies and the New Homes Bonus has led to falls in housebuilding. Hence the shift to focus on the demand side where the problem is – in the short-medium term. The figures on approved permissions is wrong though – that total is for all landbanks only half of which has consent. As previous prime-ministers have found planning is not a problem when housebuilding demand levels are low, but it suddenly becomes a majopr barrier when you try and push housebuilding towards and above the 200,000 a year mark.
On solutions she states
For a group of economic liberals, this appears to involve a surprising amount of market intervention and even some market elimination in the form of community land trusts (CLTs).
Shapps is quoted as a fan as we know
There are some in government who are less keen, fearing CLTs require too much of a subsidy. Nick Clegg has been floating “build now, pay later” schemes….
The strategy will also include attempts to galvanise the rental market. Hilton has pushed bringing in rent control; others want to encourage housebuilders to build-to-let. The government has already announced some of this but there will be more.
My take on this, which ill get around to when finished with the NPPF stuff by the end of the month, is that any strategy must have a five pronged approach, and all fiveaspects must be implemented in tandem for it to scale and be affordable. Those five strands are 1) Seperating out property appreciation from land appreciation 2) Securing land at or close to existing use value – through a reverse auction or similar process on zoned land 3) using the land appreciation to finance the build, removing the need for up front build development finance 4) Prioritising locally qualified first time buyers 5) Savings on construction through mass procurement and modular building.
If you do all five on the same site then it should be possible to build units on agricultural land for less than £40,000 a unit. A low enough level to enable rent to buy schemes for even fairly low income persons, indeed even the unemployed on housing benefit.
Sorry but this is all a rather complex business and deserves a fuller treatment. Id already promised to get back to Dr Tim Leunig of the LSE on why I think his idea of auctioning planning permissions, which the coalition has become keen on, is unworkable in its current form. Ill try and find a day to set aside on it later this week.
3a Decision taking
In the policies on development management, the level of detail is appropriate.
Do you: Strongly Agree/Agree/Neither Agree or Disagree/Disagree/Strongly Disagree
The NPPF is not self contained on this matter. Decisions makers will still need to keep ‘The Planning System General Principles‘ to hand for its advice on issues such as the materiality of private interests, and the materiality of public consultation responses, but large parts of that would be rendered out of date. This would be most confusing. Rather the key legal and operational principles from this document should be included. Decision makers referring to the NPPF would not know for example how to weigh the presumption in favour of the development plan against other material consideration and how this could be squared with the presumption in favour of sustainable development. This need add no more than two pages to the NPPF, and Planning Policy Wales is a good model.
Without a coherent statement even the very first decision under the NPPF could be legally challengeable if the decision maker was found to be confused, as everyone is, on how to apply them together. Paras 62 and 63 are of little use in this regard pulling in opposite directions. Consideration should be given to a single combined section – together with paras 13.-17. (as rewritten) on planning decision making.
The sections on pre-application engagement and front loading are welcome and reflect current best practice.
In terms of the onus of proof there is some confusion on how this will work. Previously there was the onus of proof was on those that wished to argue against a development plan, to show how ‘material considerations indicate otherwise’. In cases where a plan was indeterminate there was no burden on either side, each came to the table equally. In some cases the burden of proof was always in the developer – such as proposing an inappropriate development in the Green Belt.
Now the situation is unclear. The text on burden of proof on Green Belts has been removed. Because of the way paras. 62 and 63 are written it could be read that the onus is on the decision maker to prove in all cases that why a scheme should be refused, even if a proposal is contrary to the development plan. This creates several problems. Firstly it has created the impression amongst the objecting public that the system has become tilted against them. Secondly this is already causing disillusioned groups from engaging in the neighbourhood agenda. Thirdly it causing local authorities to consider that they might need expensive reports to back up refusals rather than relying on professional judgement. Fourthly the risk of costs is leading local authorities to begin approving even poor schemes, and finally local groups feel they need to fill the gap being left by financially streached local authorities on appeals and fund reports themselves. All of this further adding to the cost and adversarial nature of the system.
In a world where all plans are kept up to date and meet objective needs in a flexible and realistic way the ‘presumption’ is unnecessary. If it is to remain for other cases then the suggested single planning, access & design and statement should set out why the presumption in favour should apply, why it meets all other presumptions in favour (as suggested such as on design), and why any presumptions against should not apply. All other parties presenting evidence on an application would do the same.
The NPPF should set out that each application (other than minor exempt schemes) should be accompanied by a single planning, access & design and statement (SPADS). This would incorporate the following into a single document with a single simple narrative thread:
- Design and Access Statement (statutory)
- Non technical summary in EIA cases
- Planning and Heritage Statements – including assessment against development plan and NPPF
- Summary of other technical reports
- Overall conclusion
This is designed to avoid the planning by skip load culture of planning applications we have developed, and to make planning more accessible
In this suggested approach there would be no burden of proof on any party, rather the decision maker would weigh the evidence for and against and come to their decision.
3b Do you have comments? (Please begin with relevant paragraph number)
Yes see attached table for para. by para.comments.
4a Any guidance needed to support the new Framework should be light-touch and could be provided by organisations outside Government.
Do you: Strongly Agree/Agree/Neither Agree or Disagree/Disagree/Strongly Disagree
4b What should any separate guidance cover and who is best placed to provide it?
There will be a need for technical guidance and good practice guidance. Some of this can and must be provided by government agencies such as the Environment Agency and English Heritage.
However there will always be circumstances where the SoS will need to hold the ring and endorse guidance that may frequently be used on appeal, as well as ensuring that the guidance is available freely.
A perfect example of this Manual for Streets, designed to resolve disputes on acceptable road standards and highly successful in doing so. However Manual for Streets 2 was privately (by CIHT) produced and is very expensive, £150, making it expensive for neighbourhood groups to use for example in setting out design standards for new housing in neighbourhood plans. Design Guidance is so contentious that although they might be drafted by third parties ministerial ring holding and endorsement will be necessary for them to have weight on appeal.
Some guidance, for example of constructing housing trajectories, would have to be written by government as they are central to issues on appeal.
Necessary technical guidance will vary over time, but could important guidance that the government, or one of its agencies, should ensure are in place would include:
- Assessing Housing Supply and Housing Trajectories
- Assessing Employment Land Requirements
- Planning for Affordable Housing
- Planning for Town Centres First
- Enforcement of Planning Control
- Water Environment (including Flooding)
- Delivering Biodiversity in Planning
- English Design Guide (incorporating Urban Design Compendium, Manual for Streets, Accessible Design, Design Against Crime and Sustainable Design)
Transport Assessment and Travel Plans
Anyone preparing a Neighbourhood Plan, or a related document such as a Neighbourhood Development Order will need to comply with several legal duties that either apply to planning decisions or all public decision making bodies.
The NPPF hints at one of these, discrimination, but doesn’t spell them out. As a self contained document usable by the public it really should as an annex, as it shouldn’t be be necessary to pester a local solicitor or the overworked planning department.
So ive gathered the following list together as part of wider work to prepare a workable redrafting of the NPPF – bit does it need a lot of work.
Here goes. Ive also done a word version which includes hyperlinks to the various statutes. Id be grateful for any comments from lawyers – open source in action.
The Main Legal Duties Relating to Planning Decisions
The Race Relations Act 1976 , as amended by the Race Relations (Amendment) Act 2000
Sets a duty under section 71, when taking decisions, to have due regard to three specific needs:
(a) The need to eliminate unlawful racial discrimination,
(b) The need to promote equality of opportunity between persons of different racial groups,
(c) The need to promote good relations between persons of different racial groups.
The Disability Discrimination Act 1995 , as amended by the Equality Act 2010
This places a duty on all those responsible for providing a service to the public not to discriminate against disabled people by providing a lower standard of service
The Natural Environment and Rural Communities (NERC) Act 2006
Requires all public bodies to have regard to biodiversity conservation when carrying out their functions. This is commonly referred to as the ‘biodiversity duty’ .
The Human Rights Act 1998
This incorporates the provisions of the European Convention on Human Rights (ECHR) into UK law and enables the UK Courts to enforce these rights. The general purpose of the ECHR is to protect human rights and fundamental freedoms and to maintain and promote the ideals and values of a democratic society. It sets out the basic rights of every individual together with the limitations placed on these rights in order to protect the rights of others and of the wider community. The Human Rights Act makes it unlawful for a public authority to act incompatibly with these rights except where, as a result of primary legislation, it could not have acted differently. The speciﬁc Articles of the ECHR relevant to planning include Article 6 (Right to a fair and public hearing), Article 8 (Right to respect for private and family life, home and correspondence), Article 14 (Prohibition of discrimination) and Article 1 of Protocol 1 (Right to peaceful enjoyment of possessions and protection of property).
The Climate Change Act 2008
This provides the statutory framework for the reduction of greenhouse gas emissions in the UK. At the core of the Act is a requirement for the UK to reduce net UK greenhouse gas emissions by 80 per cent by 2050 – and CO2 emissions by at least 34 per cent by 2020 – against a 1990 baseline. The planning system will play an important role in tackling climate change and reducing greenhouse gas emissions. The UK Government is required to make a contribution to the International , EU and UK targets for greenhouse gas emission reduction.
A Canadian correspondent pointed me to her blog where she gives a very good case of what happens when you extend the definition of sustainable development to mean its opposite.
In this case to mean sustainable oil and gas extraction through the hugely energy consuming process of tar sands.
Err sustainable extraction of a non-renewable resource?
Actually at the scoping stage of the NPPF some minerals groups said there needed to be a definition of sustinable minerals extraction. That surely is criminal misuse of language. ‘Prudential’ extraction may be but not ‘Sustainable’.
2a Plan-making The Framework has clarified the tests of soundness, and introduces a useful additional test to ensure local plans are positively prepared to meet objectively assessed need and infrastructure requirements.
Do you: Strongly Agree/Agree/Neither Agree or Disagree/Disagree/Strongly Disagree
It is important to consider the new test alongside the ‘duty to cooperate’ (see answer to the following question).
At the outset of an Examination in Public (EiP) into a submitted plans an independent inspector will deal with the lawfulness of a plan. If the inspector considers there is a prima-face case that a plan is unlawful they will write to the LPA recommending that it is withdrawn. Of course parties may issue a legal challenge once the binding report is issued. The legal test will be ‘engage constructively’ but the policy soundness test will be stricter
‘successfully cooperated’ . The inspector may find that the outcome of cooperation is unsatisfactory and find the plan unsound.
This new test is a useful one and essential with the planned revocation of regional plans. Without the test there is a great danger that localism would see each local planning authority assuming that their neighbours would take the load. Contrary to the panglossian optimism of the planning minister the large majority of local planning authorities have sought to reduce housing levels to below levels associated with household growth. This would be unacceptable both socially and economically.
The new test omits the existing test of ‘able to be monitored’. The impact assessment oddly confuses this with the removal of the bureaucratic requirement to produce annual monitoring reports. The issues are quite different. Without this test we could see vague plans get through without clear targets which would test whether they are succeeding.
Where the evidence is ‘proportionate’ is a logically not a soundness test, it is a test of its scale and how it is prepared not of its quality. The wording ‘robust and credible’ needs to be retained.
Consistency, In the sense of internal consistency was dropped in the last version of PPS12, to much puzzlement, please put it back.
Finally in the last few years the test of flexibility has also slipped out. This has proved extremely useful at examinations as it required plans to assess fallback positions and ‘plan bs’ if a strategy did not work out because of a failure to deliver key sites.
The NPPF should clarify, as PPS12 does, that local application and elaboration of national policy is acceptable if they have sound evidence that it is justified by local circumstances.
2b Do you have comments? (Please begin with relevant
Yes see attached table for para. by para.comments.
2c Joint working The policies for planning strategically across local boundaries provide a clear framework and enough flexibility for councils and other bodies to work together effectively.
Do you: Strongly Agree/Agree/Neither Agree or Disagree/Disagree/Strongly Disagree
It is already being applied and is showing that without further strengthening it is unworkable.
The ‘duty to cooperate‘ would be created by section 95 of the
Bill, and this section was heavily modified in committee stage in the Lords. It would insert a new section 33A into the 2004 act requiring to ‘to engage constructively, actively and on an ongoing basis in any process …the preparation of development plan documents’, on a ‘strategic matter’ concerning two or more local planning authorities.
Notwithstanding the DCLG’s committees concerns about the vagueness of the wording used the bill proposes a duty to engage not a duty to agree. We might well see and have and are seeing neighbouring authorities arguing for years about what should the outcome be. Indeed a ‘duty to agree’ would be preposterous. So what are the issues and potential solutions for the many matters where housing and other issues spill over local authority boundaries? Because of the extremely tight ‘underbounding’ of many large towns in the 1974 local government reorganisation this issue affects most such areas; as well as many smaller towns.
NPPF para. 44-47 refers to the duty, it cross refers para. 23 strategic priorities on the matters cooperation should cover (note the countryside and the rural economy are not such matters curiously). Para 46. is the critical one providing the ‘teeth’ of the post-regional plan system.
“Local planning authorities will be expected to demonstrate evidence of having successfully cooperated to plan for issues with cross-boundary impacts when their Local Plans are submitted for examination. This could be by way of plans or policies prepared as part of a joint committee, a memorandum of understanding or a jointly prepared strategy which is presented as evidence of an agreed position.”
Para. 48 provides a new soundness test – that plans should be:
Positively prepared …based on a strategy which seeks to meet objectively assessed development and infrastructure requirements, including unmet requirements from neighbouring authorities where it is practical to do so consistently with the presumption in favour of sustainable development.
As stated the inspector may find that the outcome of cooperation is unsatisfactory and find the plan unsound.
This is already being applied and I will give two crucial recent cases.
The first is Rochford, a district in the Thames Gateway Essex mostly greenbelt. Like many areas where Greenbelts were too tightly drawn and remaining areas within the inner boundary of Green Belt had run out (they were typically drawn up lifespans of 20 years) meeting needs implied a green belt strategic review. The regional plan set targets which implied such a review. The submitted plan however proposed a low target and meeting the shortfall in a neighbouring authority – Basildon – which also had a high target requiring a review. Basildon said no we don’t want the extra housing. Rochford asked for the examination to be suspended until after the localism bill got royal assent, the inspector said no in the first case to apply the ‘duty to cooperate’ she said that it could be found unsound as the delivery of the strategy would depend upon delivery in the adjoining authority.
The lesson is clear, the combination of the requirement to meet objectively assessed needs and the duty to cooperate means that local planning authorities, in areas of tight planning or boundary constraints must either:
a) have agreed diversionary strategies to areas outside the constraints; or
b) have a strategic review of those planning constraints.
There is a name for such strategies – regional planning.
The second case is Stevenage. Here regional plans have followed the longstanding expansion of Stevenage to its North and West into North Herts district. Before proposed revocation of the regional plan both were cooperating on a joint approach. After the statement in June 2010 North Herts pulled out – a deliberate strategy of non-cooperation.
Because of this the inspector found the Stevenage plan ‘unsound’. It was undeliverable because of the non-cooperation. The very same week the CALA II decision came in – the regional plan had to be conformed to. Shortly thereafter the NPPF was published. The end result of this is the bizarre outcome that if the plan was examined today it would not be Stevenage that would be found unsound but North Herts, for not cooperating. Not surprisingly Stevenage have issued a judicial review.
Some authorities at EiP have also had to delay or suspend examinations because of challenges that they have not carried out Strategic Environmental Assessments on the impact of reducing housing targets from the regional plan levels (example South Wilts).
All of this has produced a chaotic situation. Not only do local planning authorities now only have a matter of months to produce up to date plans, they have in the same timescale to agree on joint strategic plans for the same areas and resolve disputes – example expansion of Harlow, Oxford, Bristol, Milton Keynes, Northampton – that have been raging for 30 years or even longer without resolution. The rats in a sack are supposed to fight it out.
There is a risk that some authorities will effectively seek a joint strategy of non-cooperation – gaming the system – by agreeing jointly to propose together as low a target as they can possibly get away with. There is already some evidence of this occurring in places such as in most of Herts and around Milton Keynes.
Looking at the two options above is stark and politically unacceptable to many Green Belt authorities, either take certain urban expansion areas out of the Green Belt, or cooperate with districts many miles away outside the Green Belt to take the overspill. Unless this takes place as a nation we shall fall short of meeting housing needs.
Indeed it is easy to forget the reason we had growth areas and growth points was, in part, a means of resolving pressure on large towns and preventing unacceptable sprawl by diverting pressure to planned areas which would undergo large scale, planned, employment led-growth. Indeed from the figures in the Housing Green Paper, Homes for the Future 2005, it is clear that the then government decided on this approach as to do otherwise would mean increasing housing numbers for districts outside the Green Belt by around 40% on average.
So the consequences are clear. If the Green Belt is ‘solid and absolutely inviolate’ as the SoS claims, and there are to be no national growth areas then there will need to be massive growth in remoter rural England. If the local authorities concerned cannot agree this then they won’t get their plans through and developers will then be able to build ‘what they like, where they like, when they like‘.
If not inviolate then LPAs could meet housing need locally by a review of Green Belt inner boundaries. Good examples of this stark choice are the 3 ministers constituencies, Tunbridge Wells – Greg Clarke, Brentwood – Eric Pickles, and Welwyn Hatfield – Grant Shapps. If you meet local objectively assessed need you have to go into the Green Belt. Indeed precedent, such as the Woking first EIP, has set that meeting housing need, a national policy, is sufficient to meet the ‘exceptional circumstances’ test of national Green Belt policy. Indeed this is a good thing as the alternative, moving all development outside the Green Belt, is not always the most sustainable solution, as the first Barker report found. In the 1980s there was a considerable over-expansion of Green Belt, indeed it was a perverse effect of the ‘liberalisation’ of planning in that era as Green Belt was applied strictly when other policies promoted growth. Green Belts typically have a life span of 20-30 years – that is the inner boundaries allowed for growth over that period. Now they are straining.
Indeed Welwyn-Hatfield has recently consulted on various options – one of which – meeting housing need locally would lead to two-three times more loss of Green Belt than was proposed under the regional plan.
Indeed such calculations, now being undertaken by many authorities, give the lie to the statements that the Green Belt is ‘safe’. Indeed the NPPF is biggest threat ever faced to the Green Belt.
The reason is the Green Belt was designed from the outset as one of a series of tools to be applied through a ‘larger than local’ plan. Without such a plan the Green Belt is much weaker and may break under strains. Development pressures will build to explosive levels locally, to the extent that some future government may consider that Green Belts are too restrictive and should be abolished (as has been discussed within the corridors of Whitehall and Downing Street several times under different governments), or their will be numerous local incursions as pressures build up. The alternative to regional planning is political suicide, and the government have now committed it.
Ministers may have hoped that by saying the Green Belt is ‘safe’ they would diffuse matters. Given that the vast majority of the public confuse the Green Belt with ‘greenfield’ they may have hoped that people would be fooled. The real problem is that the NPPF combined with the abolition of regional planning threatens both with unplanned housing via planning by appeal. Indeed the real risk is that many local leaders may find the choice of proposing targets meeting need, or accepting need displaced from elsewhere, too politically difficult; and may simply go down the planning by appeal route – then blaming the government or planning inspectors as they used to blame Regional Assemblies. We already have an example in Horsham District where the leader has said ok if this is what you want but it will mean losing on appeal. This case is notable as this was the first sound core strategy in the country. If this authority finds it is politically difficult to plan positively for growth then almost everywhere will.
Larger than local planning performs an essential economic function without it you can either build too few houses, diverting spending to land rent, or too many, creating indebtedness and the ghost estates you see in Ireland and Spain. The countries with the weakest planning systems and a lack or regional planning have suffered most in the Great Recession. Good planning is not a ‘drag anchor’ to growth, it is its foundation.
The informal arrangements proposed by the NPPF for larger than local planning are inadequate. Guidance by the Planning Officers Society on informal arrangements does not try to conceal how inadequate they are. A ‘memorandum of understanding or a jointly prepared strategy’ would come under challenge at the first EIP of the jointly affected local planning authorities. Objectors would say that they have not had an opportunity to comment on such an approach or look at its strategic environmental effects. This is a legal requirement under EU directive 2001/24/EC which is blind to borders and whether plans or programmes are statutory or not (as long as they are required by ‘legislative, regulatory or administrative provisions‘). Therefore all such joint approaches will require strategic environmental assessment and the early consultation on reasonable alternative options that this requires. The first examination in the area will become the examination for the whole of the affected area; this is unsatisfactory and potentially unlawful. An informal system of joint larger than local examinations will be needed. Effectively local planning authorities will have to rebuild the whole structure of regional and sub-regional planning from scratch.
It is not that the government is opposed to larger than local planning, rather they have opposed the form it took before, and sought futilely to abolish it without proper parliamentary authority or following correct legal procedures, and now faced with a vacuum that is causing chaos and shrinking housing numbers nationally, they are now hoping local planning authorities will get together spontaneously to fill it.
There is a way forward. Advisers such as John Howell MP and Minister such as Bob Neill have said they are fans of the old structure plan system. It is ‘larger than local planning’ of roughly that scale we need, around the travel to work areas/housing market areas of our larger towns, or groups of smaller towns in between.
But counties, the previous basis of structure plans, are not always a good basis for doing this today. We now have many unitary authorities in historic county areas – such as in Kent and Essex, so counties taking on functions would create a democratic deficit. In some cases such as Berks no historic county is left at all. In some counties we already have successful joint arrangements in parts of counties (East and West Northants, South Worc, PUSH [South Hampshire], Greater Norwich). However in other cases towns that need to expand are right on county borders, such as Milton Keynes and Harlow.
I propose a series of pragmatic reforms as follows:
1) The power to prevent local planning authorities from withdrawing plans without SoS agreement stays (the Localism Bill clause 97 is removed) – to prevent a stalling strategy
2) A new clause is inserted to the Localism Bill – right after the new ‘duty to cooperate’ clause – setting out a statutory duty for local planning authorities to have entered into a joint strategic planning scheme for an area
3) A new clause is inserted into the Localism Bill making such joint strategic plans statutory and providing for their examination. Any ‘local plan’ within the area of a joint strategic plan would need to be in ‘general conformity’ with the joint strategic plan.
4) Requiring local planning authorities to submit a strategic planning scheme to the SoS within 2 months of Royal Assent of the Localism Bill. The policy presumption would be that where submitted by two or more local planning authorities these would be automatically approved unless the SoS used powers in default (see below). Such a scheme would have the option of proposing that larger plans, or joint plans (e.g. Cornwall, South Worcs) where the plan covers one or more whole housing market areas, would also function as a strategic planning scheme – removing the need for two-tier plans in LPAs wholly covering housing market areas.
5) Where authorities refuse to enter into a joint strategic planning scheme, or where one is submitted with key authorities omitted, the SOS would have a new default power, created by adding a new clause 29a to the Planning and Compensation Act 2004 to set up a joint planning committee under section 29 of that act
6) That ministers undertake to revoke regional plans until these new strategic plans replacing them are agreed – then RSS can be revoked in the areas covered (you would also not need to SEA the revocation, only the replacement strategy).
This would work much better than the suggested localism bill clauses on joint infrastructure plans. These missed the point. You can’t separate infrastructure from development and they proposed no path for implementation.
Effectively my proposal sets up a new flexible ‘structure planning’ type arrangement, but locally driven. The default SOS default power might never be used, but the threat to use it would work wonders in creating locally driven agreement. The reforms would merely formalise what LPAs are doing in the absence of regional plans anyway.
Looking at how this might go ahead you could see joint committees set up at County level in some counties such as Oxon. Some counties might form joint committees with unitaries, the District and the County (Dorset, Herts). In some very large counties the counties might be split to reflect existing sub-regional arrangements (eg. North and South Devon, Hamps, and North and South Essex and Kent) . Large towns on county edges would need cross-border joint committees that might go one or two parishes out. This would prevent the expansion of a large town dragging down through controversy the planning of all districts around it.
These reforms would work in conjuction with the proposed reforms to the ‘presumption’. It would be a workable, natural and pragmatic solution. The presumption should be for statutory committees under section 29 of the 2004 act, or else new plans will need to be agreed via every single constituent, rather than by majority vote. The experience is that statutory committees (such as East Northants) have worked much more swiftly than informal arrangements.
Finally the presumption of having one local plans should not apply to joint waste plans. These have worked very well and now face having years of work thrown away by the NPPF.
2d Do you have comments? (Please begin with relevant paragraph number)
Yes see attached table for para. by para.comments.
Part 1. Ill go through each of the questions in turn. Once ive posted the questions ill post a table of para by para suggested amendments and finally a suggested redraft of the NPPF itself. Apologies footnotes and endnotes get stripped. Will post word and pdf versions.
1a Delivering sustainable development
The Framework has the right approach to establishing and defining the presumption in favour of sustainable development.
Do you: Strongly Agree/Agree/Neither Agree or Disagree/Disagree/Strongly Disagree
Development plans are required to must be drawn up with the objective of contributing to the achievement of sustainable development by law (section 39 2004 Act). Oddly this function does not apply to development management decisions and all other decisions under the planning acts. If the presumption is to have proper meaning and force then the law should be amended so that it does. This is a quite separate issue from the point made by successive government have stated that defining it should be a matter of policy rather than law. I agree. The key issue is whether the definition is meaningful and whether the application would actually lead to sustainable or unsustainable development.
Firstly the government has not been consistent in its definitions. The official definition is from the UK (not just English) Sustainable Development Strategy, Securing the Future, which remains in force, and at least merits a footnote in the NPPF. Neither mentioned is the coalition government’s statement ‘Mainstreaming Sustainable Development’. Again unless DCLG wants to plough a different furrow on Sustainable Development than DEFRA there should be at least a footnote mention. Finally there is the older definition from Brundtland used in the NPPF. What this means is that the government now has three different definitions of sustainable development – very confusing.
The issue of the Brundtland definition is that by itself it is uncontentious; it is simply a requirement not to be unsustainable, but to be meaningful in policy terms you need to add flesh to the bones and have a policy framework which is positive about the sustainable actions required.
The NPPF approach to sustainable development is weak and in effect seeks to define it out of existence so that property development = sustainable development.
The definition in para. 9 of the NPPF seeks to redefine the Brundtland definition by referring only to ‘basic’ needs, implying that widening inequality is acceptable if ‘basic needs’ only are met. Wheras in fact the Brundtland Report refer to the key concept of ‘‘needs’, in particular the essential needs of the world’s poor, to which overriding priority should be given. All references to lessening social inequalities and ensuring ‘Social progress which recognizes the needs of everyone‘ (from the SDS) have been excised. Indeed by contrast the NPPF gives overwhelming priority to the wealthiest who are able to carry out the most property development. This is a palpable distortion of the Brundtland approach.
The NPPF definition goes on in para.10 to define what sustainable development means for planning – the so called 3Ps. If you break down the logic of this troika you find that it comes down to:
- economic growth is sustainable
- growth meeting housing and social needs is sustainable
- except where it damages protected environments or producing too much CO2.
Reading the NPPF as a whole, which you have to do, it is clear that protected land only makes up a very small part of England, and controls on car-orientated development in rural areas are weakened.
So in effect the presumption means that property development=sustainable development, when neither on protected land nor producing too much CO2.
This is an impoverished and narrow view which almost defines sustainable development out of existence. Para. 11 refers to the need for three principles being pursued in an integrated way – but if the principles themselves are slanted so will the ‘integrated’ approach.
This is what Johnathan Porritt has called:
“SD-abuse”: the deliberate misuse of the concept of sustainable development by Ministers and civil servants to obscure the real meaning of their words… I could not find one single reference to the notion of environmental limits. Not one. Lots of warm words about the importance of the environment, but nothing of real use in defining what appropriate or inappropriate development might mean in practice. “
Whilst Tom Burke of the Green Alliance has stated
“What the Government actually means by ‘Sustainable Development’ is the tired old Treasury mantra of ‘Sustained Growth’: that is, growth that goes on forever. It definitely does not mean growth that recognises environmental risks and constraints.”
It is important to make very clear that this argument in opposition to the NPPF is not an argument against growth or development. Rather it is argument against those forms of growth and development which are not truly sustainable and in favour of those that area.
The definition could be greatly improved if it recognized environmental limits. Indeed examples elsewhere in the UK and the Commonwealth commonly do this.
I would urge the government to examine definition and policy on the application of the principle of sustainable development used in Quebec, New Zealand and Wales.
For example the New Zealand Resource Management Act includes the concept of environmental limits and this wording is reflected in the proposed definition put forward by Wildlife Link. The Quebec Sustainable Development Act builds on the Brundtland definition and includes the concepts ‘an ongoing process to improve the living conditions of the present generation that does not compromise the ability of future generations to do so and that ensures a harmonious integration of the environmental, social and economic dimensions of development.’
This is not rocket science, it is possible to meld these well tested legal definitions together in a form of words that might be acceptable to both ministers and environmental stakeholders. I suggest combining the Brundtland, Canadian and New Zealand definitions as follows:
“an ongoing process to improve the living conditions of the present generation that does not compromise the ability of future generations to do so, and that ensures, as far as possible, a harmonious integration of the environmental, social and economic dimensions of development within the limits set by the environment and technology.”
What matters though is how this translates into planning decisions. The Welsh approach is far superior and is based on the concept of environmental well-being. This derives from UN/WHO work and considerable research. The principle is that the health and well-being of people will not be sustained if the wellbeing of ecosystems, natural capital, and social, human and economic capital. This concept is critical to the first UK National Ecosystems Assessment carried out by DEFRA. Yet the NPPF nowhere refers to this, the health of ecosystems, or the wellbeing of society. It is clearly a lack of joined up government.
This is the single greatest weakness of the NPPF. A presumption in favour of sustainable development badly defined and poorly operationalised, as here, is simply a presumption in favour of development without limits – unsustainable development. That makes the NPPF a very dangerous document that could weaken support for sustainability itself.
Turning to the way the presumption is operationalised. It has a central logical flaw. The fact that sustainable development cannot be achieved without certain kinds of growth doesn’t imply that all kinds of growth promote sustainable development. Strikingly there is no presumption against unsustainable development. It is unbalanced.
A related flaw is apparent if we look at para. 14, which sets out 3 combinations, but is silent on the fourth logical one.
|Development Plan Adopted and Up to Date||Development Plan either non adopted , not up to date, Silent or Indeterminate|
|Scheme accords with Development Plan||Approve without delay||Grant Permission|
|Scheme contrary to Development Plan||NPPF is silent||Grant Permission|
Now the assumption is that, as in the top left box, section 36(1) of the Planning and Compensation Act (2004) applies.
If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.
But a reader from outside a planning background will not know this. The NPPF is a document that is supposed to be usable by non-experts, but which will in fact but unusable unless you know the legal principles on which the planning system is based and on which the NPPF is silent. It will not be usable by lay people – contrast it with, for example, the opening pages of Planning Policy Wales which sets these principles out clearly.
The presumption in favour of development is quite old, dating back to the Circular accompanying the Chamberlain Housing Act of 1923
the presumption should always be in favour of the person seeking consent to interim development, and obstacles should not be placed in the way of such development, except in the case where it is clearly detrimental to local interests and needs
Over the years the wording of it, as a policy not statute law, has changed. It was given particular stress in circular 22/80. Following the passage of the Planning and Compensation Act 2001, which introduced the Presumption in Favour of the Development Plan national policy at the time (PPG1) was alterated to square with it – though there was a tension. In 2005 PPS1 abolished the Presumption in Favour of Development – Leaving only the Presumption in Favour of the Plan. This created a problem. It depended on up to date plans.
The poor, and late, plan coverage has been a problem throughout the history of British Planning. Currently around 30% of UK planning authorities have adopted core strategies. If plans are slow to prepare and late, and plan making is the primary means to provide additional housing, then they will create a continuously growing shortage of housing and an ever greater amount of new housing that needs to be allocated to catch up.
The national housing shortage is well documented. The number of households in England is projected to grow to 27.5 million in 2033, an increase of 5.8 million (27 per cent) over 2008, or 232,000 households per year. This translates into a requirement for new dwellings of roughly 240,000 dwellings a year. In Q2 2011 housebuilding fell 4% in England from the previous quarter. In 2011 we look likely to build only around half the houses needed as a nation.
When the Q1 housebuilding statistics were released the government claimed this was evidence that the policies of revoking regional plans and introducing the New Homes Bonus was working. In fact analysis of the data showed that the Q1 rise was due to a rise in London, the one region to have maintained regional housebuilding targets. In Q2 housebuildingfell year on year by 26%. Planning approvals for housing are also down dramatically. This has lead to a furious dispute between bodies such the the CPRE and the HBF on the significance for the NPPF. A detailed analysis of the data is that both are wrong on this issue (or right depending on how you see it), houses aren’t being build because of lack of demand in a depressed market, but if demand recovered landbanks of housebuilders are dangerously low, only about half of what they should be to meet household formation. This is storing up a problem as it will slow recovery from the great recession. The problem is not the number of applications being refused but the fall in the amount of land planned for housing since the abolition of regional spatial strategies.
Though plan making progress has been unacceptably slow there was an upturn in housebuilding levels in the years following the 2004 Act, The Barker Review 2004 and the Housing Green Paper 2005 which set national housebuilding targets, progress sustained until the Great Recession. This progress has been undone, in part by the by the recession and in part by the dramatic lowering of housebuilding targets in development plans since May 2010 (this is not a political point simply a statement of fact). A reduction estimated by BNP Paribas in June as being on average 20.6% per authority.
From Planning Inspectorate Data it is clear that in early 2010 around 2/3rds of English Planning Authorities were programmed to have examinations completed and adopted plans in place by the end of 2011. So clearly despite the slowness of plan making a big ‘bulge’ of catching up was due to come forward. Finally by the end of 2010 was programmed national coverage of regional plan housing targets. So plans were coming forward, despite a desperate dragging of feet by a minority of Local Planning Authorities, with up to date numbers meeting housing need, otherwise they would not have been found ‘sound’. When these plans were adopted there was sure to be a bulge in housing starts. There always is when new plans, releasing new land, are adopted.
All of this good work was undone by the unwise, and as it turned out unlawful, ‘revocation’ of regional plans in June 2010. They still have not been revoked. The Localism Bill has not yet been granted Royal Assent. Even then the SoS has undertaken in April, not to enact Secondary Legislation until, as he is required to do under a European Directive, a Strategic Environmental Assessment of the effects of revocation, consulted on this and react to the results of consultation. This consultation has not yet even begun, but is required to by the EU directive, be at an ‘early stage’ of the decision making process. One that the SoS needs to take with an ‘open mind’. Given ministers statements and caselaw it is likely that statements of predetermination will see a successful legal challenge. Ministers reponse to the select committee report on the abolition of regional plans, was wholly inadequate and at no point dealt with the evidence of impact, It looks like that it will be at least a year more, more likely two, of regional plan targets before they are revoked, if they ever are because of the likelihood of successful legal challenge.
Since the June 2010 statement there has been a dramatic slowing of planning for housing. Plans about to be submitted have been delayed by a year or more. Even plans mid examination have been delayed, with one examination (South Wilts) that should have lasted at most a few weeks now lasting over a year as the authority rewrote it mid inquiry to reduce housebuilding. Even in one case a plan was withdrawn the day it the inspectors report was received (Coventry). Other plans have been withdrawn the even though they have been submitted (Aylesbury), and the SoS has allowed them to do so (the power to prevent this stalling is proposed to be removed by the Localism Bill). So for these and many other local planning authorities effectively starting again they are at least 2 years from adoption.
What we have seen is the largest and most important housing sites in England deleted. Growth areas around Milton Keynes, Aylesbury, Northampton, Bristol and many other towns have now gone, or have been frozen in ministerial induced uncertainty. The system of planning for housing has been thrown into reverse. Ministers have stated that eventually the New Homes Bonus will induce more housing to be allocated, one has to ask where? Can ministers name a significant number local planning authorities that have decided to increase its housebuilding levels above regional plan levels?. Rather LPAs have overwhelmingly either kept to the same targets or significantly reduced them.
Seeing this dramatic scaling back one has to ask if Ministers are giving up on the plan-led route and are looking for a plan b? Securing housebuilding through appeals
Frustration with slow progress on plan making has affected national policy several times before and I would to the DCLG that it is the key issue regarding the NPPF.
Ensuring that plans were simpler and quicker to prepare were central to the Falconer reforms enacted in 2004, on which I advised the then ODPM . Unfortunately the implementation was poor. By creating new statutory plans rather than amending existing statutes there was the impression given that everything had to start again in new form. Wales, which instead had a one page reform of development plan law( in the form I had recommended) now has 70% coverage as opposed to England’s 30%. Finally rather than making large ‘strategic’ housing allocations part of strategies this was shifted back – an error not corrected until 2008.
Some pre-development authorities have pressed forward, others awaited until controversial issues were resolved, a minority has dragged their heels, waiting for the election. Those recaltrants, urged on by then shadow ministers, felt they would have the ability to set what targets they liked. The now ministers have sensibly considered that this would result in a unacceptable slashing of housebuilding and plans should meet need, or ensure that it is met elsewhere. But those local authorities now feel betrayed.
The problem was there was never enough carrot and stick to rapidly produce plans that local politicians saw as career destroying. The current government has rightly seen the need to have more of both. The issue is how it is done.
The tactic has been set out by John Howells MP in ‘Open Source Planning’ the consequences of which were laid out in a Speech he made to the HBF in February.- where a development plan was out of date it was then to be ‘assumed to have a completely permissive planning system’ and a developer could then build ‘what they like, where they like and when they like’ , provided they met new national planning guidance being worked up in tandem with the localism bill.‘ This is exactly what has been introduced in the NPPF. Many are concluding that this is not the reform of planning but its gutting .
What will happen then where a planning application comes forward following adoption of the NPPF and relevant policies in the NPPF are not up to date?
This is an issue that has been current since the Barker Review of Land Use Planning in 2006, it did not originate with the coalition government. From this came the suggested wording that there should be a presumption in favour of development where a plan was out-of-date, absent, silent, or indeterminate. This was proposed in the draft PPS4, applying only to economic development not housing, but following consultation feedback did not find its way into the final version.
The wording of the NPPF in para 16 mean that in this case decisions makers should ‘grant permission…unless the adverse impacts of allowing development would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole.’ (para. 14)
In addition where the application is for housing, and the plan cannot demonstrate a 5 year housing supply then para. 110 baldly states that ‘planning permission should be granted‘ no if and no buts, effectively a ‘double presumption’.
It unlikely that there will be a single development plan in the country that will be up to date in the manner that the NPPF requires, when it is finalised. Even the 30% of adopted plans will not have the extra 20% of housing required by the NPPF in the first 5 years (para 109).
So early next year if a council has not been meeting its 5 year supply, which very few will because of the recession and the NPPF raising targets, the presumption. as worded. Will means that the decision maker will be required to grant permission unless it is contrary to the NPPF.
However with the default ‘yes’ in the draft NPPF there are actually very few cases where it would be contrary and could be refused. There are obvious examples where policy similar to current applies, such as AONB, European protected sites, Green Belt, the new Local Greenspace designation (for small areas when plans are adopted). But these only apply to a minority of areas. What is notable is how the NPPF strips away policy protecting around 66% of England.
I will go into the key problematic policy changes later but some are worth highlighting to illustrate just how much the NPPF has opened the taps to development in many areas:
-Firstly the policy preference towards previously developed sites is removed
-The protection of the countryside for its own sake is removed, a policy that has stood for 60 years.
-The protection for employment sites is removed, even where there is a strong demand for and local shortage of such sites.
-There is no protection for attractive or sensitive landscapes, other than national designated areas or small areas of local green space
-The ability to set a strategy to prioritise some sites over others when there is a shortfall is removed
-There is no requirement that new housing is well designed, only that its design is not ‘unacceptably poor’
What this means is, in effect, in the large majority of cases such applications will have to be approved. Realising this a flood of speculative opportunistic applications, which previously would have been refused, are now coming forward.
What the draft NPPF does is in effect turn back planning much of planning policy 30 years to 1980. Noted planning lawyer Martin Goodall saw the change coming in March 2011.
The general approach of the government, developed in the Conservative party’s final years in opposition, appeared to be rather anti-development, and brought joy to hearts of the NIMBYs. Now, we are getting pronouncements which sound much more like those of Thatcher and Heseltine post-1979, promoting the idea that development could and would be the engine of economic recovery……Could we be about to see the end of the ‘plan-led’ system and a return to planning by appeal? …Perhaps Pickles and his merry men should make a start by dusting off Circulars 9/80, 22/80, 15/84 and 14/85 and re-publishing them in modern form.
This is just what we have seen. These ancient and discredited circulars from the Nicholas Ridley era of planning by appeal have indeed been resurrected. Whole phrases and policies from these circulars have been reborn in and as the NPPF.
As of August 2011 local planning authorities now have 5-8 months to prepare new development plans before the full maelstrom of the presumption is released when the NPPF is finalised. This is unrealistic, even the swiftest plan revision will take a year. Indeed many of the staff who would be preparing plans will, and are already, fighting appeals for opportunistic applications on unsuitable sites.
What is worse the fundamental platform on which updated plans are prepared, knowing what the housing target should be, has been taken away with the planned revocation of regional plans. Decision makers are unclear on what to base future 5-15 year housing targets. In the West Midlands and South West, where regional strategies are out of date and reviews never finished, plans in some districts are over 10 years old. This has given the SoS considerable difficulties in a recent appeal deciding exactly what the 5 year target should be based on. Indeed in that same case the scheme was refused on ‘localist’ anti-development grounds last year – and following judicial review with the reinstatement of regional plans – was approved under the post-budget ‘Planning for Growth’ this year. This illustrates the u-turn in national planning policy away from localism.
The Planning Minister has stated that it will be ‘very rare’ that local planning authorities will plan for less housing than needed. This is a panglossian attitude as experience has already shown that many if not most areas are seeking less. The majority of examinations ongoing since the publication of the NPPF have seen inspectors writing to the local authorities saying stop them they as havn’t provided enough housing and/or that the expectations that other authorities will take the shortfall are not justified – examples Rochford, South Wiltshire, South Oxfordshire, Luton and South Beds, Castlepoint & Harborough District. The Telegraph commented that the attitude of the minister that all areas would agree to meet their own housing need in full as ‘Pollyana-ish naivete’ I have to agree..
One saving grace of the NPPF is that sites still have to be suitable for housing. But local planning authorities will not be able to choose between the most suitable and less suitable. If a site meats the minimum thresholds of the NPPF, in terms of infrastructure, flood risk, having some potential access to public transport etc. then it will be acceptable at ’5 year supply’ shortage appeals, even though the site might be the least suitable, least accessible, causes significant congestion, and is the least preferred site around a settlement – even previously ‘safe’ areas are now under threat. Para. 19 only allows choice of land of ‘lesser environmental value’ at development plan, and not planning application stage. This completely undermines planning and plan making. Nor is there any opportunity to refuse schemes on grounds of prematurity, even is a plan is close to examination, a site would undermine the ‘heart’ of a plan and would be demonstrably inferior to others. Indeed in these circumstances why wait for an examination at all? Many developers owning poor sites are, after looking at the NPPF, are concluding that they stand a much better chance by forcing an appeal prior to the examination and pre-empting its findings.
The approach contrasts with the ‘plan, monitor, manage’ approach of current policy in PPS3 para.s 60-72 (and which certainly is too long and woolly) which requires ‘management action’ when there is a shortfall – i.e. the local planning authority deciding which additional sites to bring forward, against its strategy.
It is essential that where land releases take place it takes place against a strategy, and in cases where a site goes to the heart of that strategy there is the fall back position of ‘prematurity’. Otherwise we could see chaotic appeal led planning of the sort we saw in the 1980s where housing is planned on a site by site basis, without due consideration, and without regard to the view of the local community about how the future of their place should be shaped.
In some cases, particularly for many of the ’cause célèbre’
‘ housing sites, it is not an issue of whether but when sites are developed. At many appeals local groups may oppose a site in principle, but the arguments turn not on a site’s suitability, because alternative sites often turn out to be far less accessible and sustainable, but when. Does the area have a 4 year housing supply or 7, for example. This often comes as a surprise to local residents. But understanding this can take the heat out of many arguments about housing targets. A slightly higher or lower housing target will in most cases simply mean whether a site is pushed back or brought forward by a small number of years. The real priority is to ensure that all English local planning authorities have a ‘rank order’ of development sites in a housing delivery plan.
Such an approach is already partially in place with almost total coverage of England now with Strategic Housing Land Availability Assessments (SHLAAs). This shows that there is plenty of potentially suitable housing sites, England has a shortage of housing not housing sites, but whether or not they are acceptable depends on a strategy. Sites may be physically ‘suitable’ but not ‘acceptable’ according to a strategy which sets growth in one direction or another to ensure acceptable cumulative impact and to match development to infrastructure.
I propose a reform which will ensure that there is continuous and steady delivery of new housing at a pace to meet our nations needs – the national government’s main concern – but in a way that is planned and occurs in a manner determined by local government and communities – local government’s main concern.
Such an approach would have three components.
1) Set a strict, tough and binding statutory timetable for plan-making. With a period of one year (till end of 2012) before the full force of the ‘presumption’ applies to new housing to enable local planning authorities to get new plans in place.
2) All local planning authorities to publish a ‘housing site ranking’ in advance of their final plans – with appeals determining whether sites in that ranking are brought forward or not
3) Tough new structures over the duty to cooperate’ to resolve inter-authority squabbles which are holding up plan making.
I deal with the third issue in a later section. All three parts are crucial to reforms that would work.
The idea of a short delay before the ‘presumption’ comes into play has been suggested in Open Source Planning and also supported by Jack Dromy MP. It is possible to get plans in place within 1 year. The regulations allow for it and the ‘stick’ of the presumption coming into play encourages it. Amendments to the localism bill could make it statutory and set financial and other penalties, such as powers in default, or powers for planning consultancies to take over plan making in default, if plans are not in place. The main issue is a logistical one, determining many plan examinations at once in Autumn 2012. This is manageable. Local Planning Authorities can prepare joint plans to reduce the number of examinations. There were a number of plan examiners laid off in 2010 because of a ‘lack of demand’ with many plans delayed then. Temporary and retired inspectors can be brought in. Planning barristers can be drafted in as temporary inspectors rather than fighting appeals (each appeal of course takes two barristers). It is doable, with resources and efforts, resources which would otherwise be spent at appeals.
The housing site ranking is simply an extension of what many authorities are doing already. Even before an authority finalises its housing target in its submitted plan it can publish its preferred site ranking at an earlier stage. All local authorities now have consulted on spatial directions of growth and so there is no reason why they cannot decide on a rank-ordering, even though they might argue that at a certain point development should not take place. This would be then used on appeal if an area fell short on its 5 year supply. Where a site was next in line the decision would be straightforward. If it was further down an appellant would need to successfully argue that it should be preferred over other higher ranked order sites.
This would be much better than the crude binary ‘yes’, ‘no’ approach. If a local group wanted to argue that a site they wished to protect should be ranked lower, it would require then to demonstrate that other sites should be ranked higher. The reality that tough decisions on housing cannot be dodged would be apparent.
This crude binary approach is also reflected in the application of the ‘out of date’ test. This could lead to almost all adopted plans being out-of-date even if the plan has just been adopted, especially in combination with the change in the way housing targets are proposed to be calculated. Combined with uncertainty about how the ‘certificate of conformity’ test will apply, by policy or by the whole plan? Will a plan be judges ‘out of date’ if just one policy (say housing targets) is out of date and if so does the ‘presumption’ to say ‘yes’[ override the rest of the plan.
Various amendments can be made to alleviate these concerns and we suggest some in the next section.
In legal terms a ‘presumption’ means a fact that can be made without proof. So it says ok this scheme is acceptable prove otherwise. Which rather begs the question whose job it is to show that a scheme is sustainable, if you have a presumption in favour of sustainable development?
If it is the applicants job then the concept of a presumption is meaningless as the onus is still on the applicant.- so why have it at all?
If it is the local authorities then it implies that everything is sustainable unless proven otherwise which immediately puts planners in a negative position, to find reasons to throw things out rather than to find solutions, and makes developers lazy as it assumes everything is sustainable. It could well have a negative effect by breeding an anti-development development management political culture – exactly as we saw in the 1980s.
That is why the idea of a ‘presumption’ is a red herring. What matters is the ‘positivity’ the approach towards finding answers to see schemes through – It is a cultural issue.
Finally the ‘presumption in favour’, if retained, might also be balanced by a few other positive planning presumptions in favour, to ensure that poor schemes do not slip through. I would suggest:
- A presumption in favour of quality urban and landscape design
- A presumption in favour of priority to use of sustainable modes of transport;
- A presumption in favour of sustainable and inclusive communities (paras. 124-127 of NPPF) &
- A presumption in favour of increased biodiversity (para. 169)
This might best be logically done through including these in the ‘core planning principles’ and having a presumption in favour of all schemes meeting these principles as far as practicable.
As worded the NPPF would undermine the negotiating strength of local communities and allow developers to promote poor schemes without amendment. The presumption of favour of sustainable development should only apply to development that incorporate reasonable and justified improvements and amendments.
Finally the ‘significantly and demonstrably outweigh the benefits’ tests is perverse as it would mean approving schemes even where the disbenefits of a scheme (including to growth and sustainability) o9utweigh the benefits.
1b Do you have comments? (Please begin with relevant paragraph number)
Yes see attached table for para. By para.comments. A suggested redrafting of the definition and document is also attached.
Simon Jenkins ‘The BPF in effect drafted its own new national planning policy framework for the hapless minister’ #NPPF
Simon Jenkins in the Guardian on how the artithmetic of coalition has opened the door to lobbyists.
The coalition government, which started in a spirit of reformist radicalism, is proving one whose inexperience and shaky majority leaves it vulnerable to lobbyists…
ministers appeared bemused by what kept hitting them. The construction industry scored the most remarkable successes. With plummeting local council capital budgets, it struggled to protect its prestige projects by stressing the embarrassment of their cancellation. Hence such costly survivals as the high-speed rail line, London’s Crossrail and the grand-daddy of them all, the Olympics.
Last month came an even greater lobbying coup when the British Property Federation in effect drafted its own new national planning policy framework for the hapless minister, Eric Pickles, under the so-called localism bill. This ended the policy of directing development to existing “brownfield” settlement and released controls for more profitable building on the 65% of England that remains rural, and not formally conserved. The lobby even included a bizarre requirement that local councils each be forced to donate an extra 20% to existing development land banks.
This coup was achieved by a deft alliance of private housebuilders, big retailers and the “affordable rural housing” lobby. They argued that, even though they were sitting on the largest land banks ever, rural land shortage was a constraint on growth. Environment ministers reeling from defeat over the fate of the Forestry Commission caved in, but were then baffled at the fury of green organisations outraged to see the end of 50 years of countryside guardianship. The lobby could not believe its luck.
The truth is that ministers who came to office with no experience of the cut-and-thrust of policy find themselves at the mercy of shrewder heads. Given the need to maintain backbench support for core economic policy, the whips argued for concessions to special interests. Government policy normally reflects a compromise of forces; early in a parliament political interest dominates, but the hope is that in time, the pressure of events and public opinion gain the upper hand and wider debate occurs.
At present that is not happening. The arithmetic of coalition has scared ministers into making short-term concessions to lobbyists, sometimes lurching into U-turns when the implications are made public. This is inefficient and secretive, but the above examples show it can be awesomely effective. There are many bad forms of government, but government by lobbyist is surely the worst.
The bit about the landbanks aside this is a shred assessment. Though I think a better analysis is that ministers have not wanted to expose policy formulation to wider internal debate and the coalition agreement has almost forbidden it. As a result influential lobyists and ‘dumb tanks’ such as the Policy Exchange have gained influence well beyond their numbers.
The crazy anti-sustainable development politics of the TEa Party right in America, and how they have influenced, through funding of ‘dumb tanks’ like the Policy Exchange, has been a constant theme on this blog. (search Agenda 21 or Tea Party on the bar for past articles)
Forbes has a debate between a pro-sprawl tea partier and an anti-sprawl tea partier.
In the decades after World War II, urban planners across the country pursued a variety of aggressive “get people into their cars” policies. They used the power of eminent domain topush freeways through the heart of urban areas, destroying some neighborhoods outright and cutting others off from the rest of the city. They passed zoning restrictions that systematically discouraged high-density urban living. Many of these laws are still on the books to this day. In addition to restricting building heights and mixed-use development, these zoning codes almost invariably force developers to provide parking for new construction projects, whether the market demands it or not.
The results of these policies—convenient automobile access to the heart of the city, plentiful parking, inflated rents in the city compared to the suburbs, spread-out neighborhoods that are hard to traverse on foot—creates the illusion that people are freely choosing a suburban, auto-oriented lifestyle. But this is like saying the market has freely chosen to sweeten products using high fructose corn syrup while ignoring corn subsidies and sugar tariffs.
Thew Daily Mail has an intriguing story that Northern Rock/Baradford and Bingley are to ring up some ‘high risk’ customers warning them to curb their discretionary spending.
Richard Banks, chief executive of UK Asset Resolution, said: ‘Some people won’t cope when interest rates rise, but for others there are remedies. They need to think about what is their most important debt.
‘It is not their credit card or renewing their Sky subscription, or going out for the latest mobile technology. It is their mortgage.
Quite sensible from their point of view, when interests rates rise, as they must many will be clobberred.
But it will kill off discretionary spending and economic growth. The underlying problem, excessive household debt, needs to be tackled at source. Iceland have done this, and are now seeing healthy growth.