Building a Parliamentary Majority for Planning Reform

There is a considerable risk that without support from some opposition members there may be sufficient ‘rebels’ on the government benches for reform of the nature in the Planning White paper to not pass.

Though no fan of many of the changes it would be disastrous for there to be a ‘u turn’ because we clearly need Planning Reform, indeed so much of the opposition to new development is because of dysfunctions of the Planning System.

Looking back at changes to planning systems in the past in the UK and internationally there is a golden rule to planning reform.

Planning Reform follows and enables good planning practice. A consensus only forms on planning reform when there is there is political momentum to enable better planning.

The debate has been different in the last couple of years. We have got beyond the agenda of ‘liberalising planning’ – of ‘build what you like where you like’ to one of ‘why do other countries build more and build better?’ Though there are still residuals of this in the widening of permitted development. Caused I think by frustrations of ministers that this is at least one lever they can pull quickly however counterproductive it is.

Much of the anxiety of many anti-development MPs is caused by dysfunctions of the current system. For example it is no surprise that the two most vocal anti-development MPs are Mps for the Isle of White and Isle of Thanet, two land constrained areas where without strategic planning must take there full share.

The instinct of the Prime Minister is to bulldozer through change not seek consensus, but he may have no alternative here. The tone of the introduction of the Planning White Paper was unnecessarily dirigiste ‘tear it down and start again’. Also it was very unclear how it would work. The key change – shifting more towards a zoning and sub-division system now being adopted by every other country in the world apart from the UK, was poorly explained and understood. It had precisely one sentence on how this was best practice in Europe and seemed embarrassed by an admission that Europe may be better. The White paper was also contaminated by some eccentric ideas from some of the axe grinders on its ‘expert advisory’ group, none of which were experts on international planning reform.

We see rumors of response to consultation on the White Paper being published by the Parliament Recess (22nd July I believe).

The opposition day motion today also shows lack of understanding on what planning reform might look like from the opposition. Their motion is meaningless.

The MCHLG select committee is right. A draft Planning Reform Act should be published for consultation.

As someone who has been called several times in the past to advise on Planning Reform (here and abroad) I have seen the mess that that is caused in advising Parliamentary Counsel on Planning Reforms. The 2004 act was a disaster because it contained many concepts that could not easily be translated into law – such as ‘framework’.

This is why I undertook the ambitious task of drafting out what I think a Planning Reform Act will look like. This week I’m just on the final miscellaneous clauses at the back end of many acts of existing legislation, and with cross checking of cross references, for which I’m having to use special software, and checking wording against Parliamentary Council guidance and several tests on legislative drafting – I hope to have it out the middle of next week. You don’t have to be a lawyer to do this, just have a basic understanding of planning law, and international planning law. Lawyers can tidy up a draft later.

The starting point was to have one codified planning law. We haven’t had this since 1990. Planning law has become way to complex and dissipated. The new proposed law would replace at least half a dozen pieces of legislation. It does this by widening the concept of ‘planning permission’ for example to include listed building consent, DCOs etc. We have already started down this path by rolling conservation area consent into planning permission. This has been complex but well worthwhile. No longer do we need at least 8 definitions of ‘local authority’ three of more almost word for word duplications of enforcement provision etc.

Put together I then asked how much of the law needed altering to enable, not proscribe, some form of zoning consent for some sites in development plans. Well three major clauses only. Its that simple. No need to ‘tear it down and start again’ rather codify, simplify and speed up. Most of the key concepts that everyone understands like ‘planning permission’ can stay, no need to scare the horses. You wont need to stand down every planner in the country for two years retraining. Even those clauses that enable zoning are nothing new. There are half a dozen clauses in existing legislation that enable some form of zoning, LDOs, NDOs, SPZs etc. I replace them with one simple clause. You never saw people ,arching in the street over those clauses and you wont with a new bill on the lines I suggest.

What I suggest is including provision in the act for ‘planning schemes’. This is a concept from pre-war planning legislation that survives in several sections of planning law today in residual forms (for example on compulsory purchase and LDOs) – for example the ‘no scheme word’. A planning scheme is a zoning scheme which might include a design code. Planning Schemes would provide ‘permission in principle’ which I would simply to mean outline permission where the principle of the use, and potentially one or more items, would be decided. I propose modifying outline permission law to conform to modern masterplan practice, similar to the recent introduction of masterplan consent in Scotland. Rather than reserved matters there would be parameter permission and those permissions would be the same as parameter plan approvals for masterplans – and include things like buildings lines, plot subdivision etc. To make this happen the “Planning map’ (policies map, proposals map) would be statutory and online and show all planning schemes and parameters of consents and design codes.

I say enable not proscribe because every zoning system is to some extent a hybrid system including some degree of development management consent. For example in almost all rural areas of the Netherlands and Germany this is the case. What I suggest is provision for Planning Schemes in new style local plans for incentives to introduce them.

These incentives are critical because they could be what builds a parliamentary majority as it would be very difficult for the opposition, or even many recalcitrant shire MPs, to oppose as it gives them what they want.

The first thing it gives them is the community more control over design and design coding – this is much discussed so I wont cover it in detail here.

The second is that it enables much more proactive and positive planning of large developments, on the continental/Letwin Review model. I include powers of lot reorganisation and exaction critical to making this happen. No longer would the call for sites tail lead the planning donkey.

This change is critical as it is essential to breaking the oligopolistic ‘broken housing market’ grip of major house-builders, through enabling subdivision and development of larger sites by many smaller builders. No need for ‘use it or lose it’ provisions – I have a better idea.

I propose a simple ‘development and infrastructure charge’ to replace CIL and most S106 charges. A small charge on consent, and annually if not built to a phasing plan, but then a larger charge based on uplift on land value (not building value) only based on a trigger event of when electricity is connected (which is the way the rest of the world do it). S106s could still be used for payments needed for advanced works, such payments being deducted from the charge. Such a charge would be simple to collect, would come of price of land and would raise vast sums for infrastructure. Ticking one of the shire antidevelopment complaints. The beauty of it is that it automatically only applies to non-exacted sellable lands, so automatically deducts land payments in lieu. I suggest a % of the charge is redistricuted nationally based on need, including when planning schemes are adopted.

The second box this ticks is that through capturing land value uplift it provides a vast new fund for building affordable housing. Ticking the ‘people here cant afford these houses’ box. This is a batter argument then planning reform is needed because home owners vote tory, hardly an idea designed to win over MPsof other party’s.

Finally on larger than local planning I suggest a simple workable replacement for the unwieldy duty to cooperate – which works but takes geological timeto work. The Strategic Planning Duty I propose is bottom up, accept in those LPAs where strategic planning is internal to the LPA (e.g. Cornwall) LPAs would have a duty to form part of a strategic planning groups to determinate strategic planning policies or joint plans. They would be governed by majority vote. The SoS would then have a residual duty only when there was a disagreement about membership of such groups. Where groups disagreed (an example might be between the Black Country and Shropshire on overspill housing), the SoS would have the power to form conferences governed on the same basis. No need for separate legislation governing SDS’s.

A major advantage to this system is it takes the toxicity from the SOS role in setting the standard method. I suggest that the local standard method is objectively needs based and contains no policy component or cap. Then the SOS would then redistribute the need to the strategic planning groupings not individual LPAs, and the formula could include a modest urban uplift and recognition of land and statutory (like AONB) but not policy constraints.

I have suggested some targeted changes to reform the land compensation act so that the no scheme world/pone gourde rule clearly applies to setting the pre local plan world existing land value world and abolishing the nonsense on stilts of the Certificate of Appropriate Alternative Development. This would enable CPO at existing use value and a new generation of garden cities. To those that argue this is ‘dual price’ nonsense, no more so than ‘pont gorde’ just made clear as the law commission has recommended with a suggested ‘clearing out’ clause on pre-existing caselaw as they recommended. There is no dual price as it sets pre-local plan as one price, existing land use value. A couple of reforms I suggest the government might have to swallow their pride on as necessary to building consensus.

One is where a planning scheme is brought in through a local plan it can supersede existing development orders such as the GPDO. This would be a major incentive to bring them forward. A policy test such as not unnecessarily restricting development, applied by planning inspectors, is suggested. Again how could the opposition object to that.

Secondly the Planning Inspectorate would be made statutory with no role for ministers in determining applications. The system in Ireland. Probity demands this. I’m not suggesting that party donations form an influence on decisions, but as long as that possibility remains any democracy has a duty to legislate that possibility out of existence. Again how could an opposition not support that.

To an extent this is an attempt to ‘open source’ planning legislation. To bring in expertise and build consensus. Even is major parts were not accepted by government it gives campaigners and opposing MPs resource from which to draw in setting forth rational amendments.

Wish me luck.

5 thoughts on “Building a Parliamentary Majority for Planning Reform

  1. Very interesting and useful contribution to the debate.

    I suspect those Dominic Cummings incentivised eccentric “axe grinding” voices (including- as well as the Policy Exchange motley crew- some truly bizarre Hayekian/ Public Choice ‘esque assertions from the Centre for Cities that we live in Soviet Russia) won’t be mollified in the slightest though. As they really do want to ‘tear it down’ such that we, in effect, have nothing more than a (highly permissive) building permit system.

    But they aren’t going to get that through the HofC now- and were never likely to once the suburban/ shire local Conservative associations woke up to the implications of the 2020 White Paper. “Planning for the Future” is as dead as the proverbial dodo.

    The ideas contained in this blog entry on the other hand are a much better start point for a debate about a hybrid system of local discretion/ strategic oversight/ and zonal allocation. I look forward to reading your draft bill.

  2. My reading of your post is that you amply demonstrate the need for what you appear to oppose – the risk that the planning bill may not pass. You insist that we need reform – and then propose substantial changes not in the bill.
    Conclusion? The bill that we have is not fit for purpose. Parliament needs to reject it, and write something better.

  3. Pingback: Planning Law Needs Reform and Not a Crude Hack @joannaaverley @ChrisPincher | Decisions, Decisions, Decisions

  4. Pingback: What a Planning Reform Bill Should Look Like – If it is to be real reform and passable | Decisions, Decisions, Decisions

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