The best-laid plans

The planning system is facing its largest shake-up for half a century. Simon Ricketts looks at what the Government has up its sleeve and how this willimpact on the industry

Planning lawyers and their clients are in the midst of the biggest shake-up of the planning ­system for more than 50 years. It may be said that new governments are elected to make changes and that the direction of travel was clear from the ­Conservatives’ pre-election Open Source Planning green paper, which asserted that the current planning system is “broken” and that the current regime of top-down ­national and regional housebuilding targets would be scrapped and replaced by a more “localist”, neighbourhood-based approach. However, the current pace and absence of consultation on the detail is surprising to many.

On 6 July the new Secretary of State for Communities and Local Government Eric Pickles revoked all regional strategies and announced that all current national planning policy statements (set to be reviewed and amended to become a single national planning framework) should now be read
as no longer containing any ­reference to ­regional planning. The announcement was accompanied by a short Q&A document.

A number of us have expressed dissatisfaction with the lack of detail. For example, the national planning policy statements were written in the context of a system that had regional strategic planning at its core. How are policies now to be applied?

What ifs

We are advised that authorities “may wish” to review their stance in relation to undetermined applications in the light of the ­policy changes. But what if an authority does not carry out such a review in ­relation to a major application? Or what if it decides to change its previously positive stance? There is the risk of an authority taking an anti-­development stance without sanction, either deliberately for local political ­reasons or because it is running scared of the risk of legal challenge. (The ­Government’s response to criticism on this is that “the new guidance is crystal clear – councils are in charge. They can now deliver plans and make decisions.”)

The proposed financial incentive for authorities that is to be introduced to encourage them to grant permission, worth six times the additional council tax or ­business rates to be raised from the new development, has not yet been introduced and there is no clarity as to whether ­applications that are submitted in this ­transitional period will yet qualify.

A Decentralisation and Localism Bill will be introduced into Parliament after the ­summer. The bill is likely to include a ­’community right to build’, exempting certain community organisations from the need for planning permission if there is ­”overwhelming community support for the development”. The presumption in favour of development that accords with the development plan will be replaced by a ­presumption in favour of sustainable development. There will be emphasis on local participation, both in plan making and in the ­planning application ­consultation ­processes. We do not know whether the controversial proposals in Open Source planning to ­introduce a right for objectors to appeal against the granting of planning permission, and to limit developers’ rights of appeal against the refusal of ­permission, are to be ­followed through.

Planning for change

As part of the Government’s wider ’Big ­Society’ agenda, the Prime Minister has announced four pilot areas to test some of the proposed changes: Liverpool, Windsor and Maidenhead, Sutton and Eden Valley.

As well as the abolition of the Regional Development Agencies, to be replaced by new public-private sector Local Enterprise Partnerships, nine regional government offices are being abolished and the ­architectural advisory body Commission for Architecture and the Built ­Environment (Cabe) is likely to be merged with English Heritage.

In London the changes will be less far-reaching. The ’regional’ tier, in the form of a directly elected mayor, together with his ’London Plan’, which must comply with ­individual boroughs’ plans, will remain, and indeed it is possible that further powers will be devolved to the mayor. The London ­governance model may also be introduced in other city regions.

For planning lawyers the challenge is to stay on top of the changes and to be able to explain their potential implications to our clients while keeping in our minds ­fundamental principles of public law and of international and EU legal requirements with which the detail of the new system will need to comply.

Simon Ricketts is a partner at SJ Berwin