Blog: Planning Ahead

Frankly, I sometimes find it surprising that the development industry is building as much as it is. Uncertainty has plagued planning since before the last election, from the pre-election declarations regarding regions, reversing Prescott's houses and localism, to the revocation and reinstatement of Regional Strategy, the National Planning Policy Framework (NPPF) and the cold hard realities of actually making Community Infrastructure Levy (CIL) work. All of that debate and argument was layered on top of a planning system which was still trying to implement the reforms in the 2004 and 2008 planning acts. Even under normal economic circumstances, that would be trying.

So now the Treasury, Number 10 and even Nick Clegg have set their sights on getting Britain building again. The measures are starting to be given to the press in piecemeal fashion but big changes look to be on the cards over the next year. With all the balls being thrown back into the air, and the rumour mill in overdrive, we will be tracking the proposed Bill, regulations and any other measures and offering updates, comments and criticism.

27 September 2012: The Five Ps

One of the measures announced which got very little air time at the beginning of the month was the threat to local planning authorities that they risk losing control if their performance is not up to scratch. In a reversal of the (polite version) of the well-known saying, the Government has decide that Poor Performance Prevents Proper Planning. Taking the quasi-judicial nature of planning seriously they have decided that excessive delays are poor for justice.

The proposal, which in Mr Pickles' written statement to the house follows three paragraphs trumpeting localism, starkly warns council that those who have a track record of delay and poor quality decisions could be bypassed completely, leaving the Planning Inspectorate to make the decisions instead. We can only hope that when the legislation is published, the quality element is treated sensibly. We have all heard anecdotal stories of the effects of the Planning Performance Grants that rewarded councils for consistently meeting decision deadlines. The threat of complete loss of planning powers is much more frightening than failing to capture a slice of government grant. Proper planning will suffer if councils are scared to take an extra week to make a more well informed, more considered or just plain right decision.

I am tempted not to ask where the Planning Inspectorate are to get funding for dealing with the additional caseload. I suspect that would re-open a whole new debate about application fees.

12 September 2012: Permitted Over-Development Rights?

The other main change which hit the headlines was of course the proposal to consult on bigger extensions or conservatories. Presumably this aims to protect the small builders, although one wonders how many people are put off in the current climate by the need to get permission rather than other factors such as cost.

The fact that 90% of extensions are eventually approved was quoted, presumably so as to justify the move as one of red-tape cutting rather than one which was likely to change anything. I would love to drill further into those figures. How many of those needed permission only because they were a few inches here or there, perhaps too close to a neighbour or slightly higher, longer or deeper than permitted automatically? How many underwent change both at the design stage or through the application because they knew that they had to be justified?

The proposals themselves are not yet published for consultation. I do wonder if these will be watered down over time, like the business to residential proposals before them, as detailed criticism brings home some practical realities.

The permitted development rights are frequently used as a baseline – a yard stick against which more ambitious proposals are measured (but in metric units of course). Changing these without many more controls than exist already is a recipe for neighbour disputes. This is likely to be amplified when the rights are changed only for a limited time window and people want to get started as soon as possible. Permitted development rights don't alter rights of light, party wall issues, building regulations or easements. Localism encouraged people to think they had control over development in their area and if that proves to be wrong, that has to engender a sense of injustice. It would be unfortunate if, in seeking to take some works outside the planning system, the government pushed it into the court system instead.

11 September 2012: What is affordable?

So we've now had a couple of days' silence from the government while we pick over what measures actually were announced on Thursday and perhaps more significantly what weren’t.

Many of the announcements were financial including the £280 million for First Buy (apparently with matched funding from housebuilders) which seems to be the attempt to off-set any loss of affordable housing from renegotiations on stalled sites. Detractors argue that this simply results in the hard-pressed public purse taking on the obligations of the hard-pressed developer.

The much criticised suggestion that sites need not deliver affordable housing seems a lot narrower in the cold light of day. There are two proposals and the difference between them isn't clear. The first would allow developers of unviable sites to immediately appeal to have their numbers of affordable houses reduced to a viable level. The second would allow developers to renegotiate agreements entered into prior to April 2010. It might be that the send measure is just an interim stage until the full power is brought through primary legislation. It certainly could be done more quickly under secondary legislation by simply reducing the five year limit on appealing section 106 obligations. This has already been proposed by the government for older agreements in any event. We can only assume that the first proposal is some tweak to this power otherwise it is difficult to see why they think primary legislation is needed.

In reality the industry has been negotiating and renegotiating affordable housing delivery on the basis of viability since well before the financial crisis. Many now have on-going built in viability checks. A power to appeal means the council cannot simply sit on their hands safe in the knowledge they can just say no until five years have passed or the permission expires. But any seriously pro-growth council knows that they have to at least engage with this process already if they want to see development happen.

Developers may feel that the upward and widening trend of financial demands on development sites should never have continued in a period of restricted viability. Councils remain distrustful of developer-supplied viability assessments which claim poverty. What is certainly true is that councils need to be well staffed and have the right expertise, either in-house or external consultants to deal with this challenge properly. And yet again, that all comes down to money.

6 September 2012: Devil (as always) in the detail

The Government has had recent success getting the stalled housing at Ebbsfleet restarted. But that was an economic problem solved by the taxpayer footing part of the bill for infrastructure and the changing of timings.

These new measures will require change in the nature of planning. So far, media excitement has revolved around affordable housing and wider domestic permitted development rights to let homeowners extend more if they get on with it in a three year window. Early renegotiation of affordable housing commitments in planning agreements has actually been suggested by the Government before, at least for agreements signed before 2010, though the media could be forgiven for not having been excited by a technical reference to altering the time period prescribed under section 106B. It isn't clear if the proposal is to use the same mechanism or add an entirely new system of reviewing unviable agreements.

Talk of altering the appeals system is worrying and may not be politically possible given that many on the Government back benches still want to extend appeals to third parties, which is hardly a fast track to decision making. As for treading on Judges' toes by interfering with Judicial Review, the Government would have to be careful not to look as if it is simply protecting itself from the kinds of embarrassments it has had in the first years of office. Any limitation on Judicial Review will need to be treated carefully if the Government is to comply with its responsibilities under the Aarhus Convention and the European Convention on Human Rights, both of which protect access to Justice.

As we saw with the attempt to abolish regional strategies, challenges to the legality of the process itself creates delay as the industry waits to see the result or decisions have to be unpicked after the courts give their interpretation.

Deidre Hipwell in the Times today gives a good overview of the challenges faced, both highlighting the problems which need resolving and the competing views on any solution. The reality has always been that where viability is poor, it is affordable housing that has been squeezed. We saw that most recently with the introduction of CIL. Nick Clegg on the today programme this morning was only talking about allowing renegotiations on viability grounds so a wholesale suspension of affordable housing targets doesn't seem to be on the agenda.

The machinery of the planning system has a lot of levers to be pulled in different combinations. The Government's task should not be to write newspaper headlines but to listen to practitioners and select those measures which will increase speed, certainty and viability with the minimum lead-in time. They need to consider not just the legislative time but the time taken to commence provisions, their implementation and be up-front about both transitional provisions and any guidance, something which historically has often been left until last. Crucially, they also need to be swift in taking off the table those measures which will not be touched in order to minimise the period of uncertainty. Legal and policy uncertainty is deadly to major planning applications especially in a time of economic doubt as well.

We wait with bated breath for further details and of course, how much the DCLG team will actually be involved. The DCLG team has been completely reshuffled apart from Eric Pickles himself. The statement about the new measures is described as being from the PM and his deputy alongside the Communities Secretary. Still, given we understand the Treasury were closely involved with the implementation of CIL regulations, initiatives being led from outside DCLG should be no cause for concern... should it?