Reform proposed of the ‘entire corpus of…

Published today, the White Paper Planning for the Future puts forward a package of proposals for reform of the planning system in England with the aim of “re-discovering the mission and purpose” of the late Victorian and early 20^th Century builders.

The proposals feature three ‘pillars’- Pillar One: Planning for development, Pillar Two: Planning for beautiful and sustainable places, and Pillar Three: Planning for infrastructure and connected places. They cover plan-making, development management, developer contributions and other related policy proposals. This article focuses on the key points in relation to Pillar One, which contains 10 proposals in total.

It is explained that an effective planning system should as a starting point establish a clear and predictable basis for the pattern and form of development in an area but the current system in England, based principally on policy-based Local Plans with a separate process required to secure permission for the sites that have been designated for development, is compared negatively with those in places like Japan, the Netherlands and Germany “where plans give greater certainty that development is permitted in principle upfront”. It is considered that whilst Local Plans are a good foundation on which to base reform, as they “provide a route for local requirements to be identified and assessed” as well as a forum for political debate and the hearing of different views on the future of areas, the layers of assessment, guidance and policy have broadened the scope of Local Plans and required a disproportionate burden of evidence to support them.

The concerns are:

The length of time it takes to get an up to date Local Plan in place; this is identified in the Paper as one of the main problems hindering the planning system as it stands. The Paper notes that it takes an average of 7 years to get a Local Plan into place and that as of June 2020 only 50% of authorities have theirs up to date in accordance with their statutory obligation. Nor have adopted Local Plans in any case led to enough homes being built (187,000 per year as against the ambition for 300,000).

The length and complexity of Local Plans (sometimes nearly 500 pages).

Their underpinning by “vast swathes” of evidence base documents (sometimes at least ten times the length of the Plan itself) which become dated very quickly and which few people read or find easy to understand.

The Paper therefore proposes a new role for Local Plans and a new process for making them, by replacing the existing primary and secondary legislation. It is proposed that Local Plans should instead be focused on where it is considered that they can add real value- in allocating enough land for development in the right places, in giving certainty about what can be developed on that land, and in making the process for getting permission for development as simple as possible and providing local communities with the genuine opportunity to shape those decisions.

The Paper sets out five main proposals, the first of which is to streamline the planning process with more democracy taking place more effectively at the plan-making stage. The promise is to “replace the entire corpus of plan-making law in England to achieve this”. The key ideas here, as reflected in the details of Pillar One, are:

To simply the role of Local Plans by having them focus on identifying land within three categories: Growth areas (suitable for substantial development- as defined in policy to avoid any debate about its meaning- with automatic outline approval for specified forms and types of development), Renewal areas (suitable for some development such as “gentle densification”) and Protected areas such as Green Belt, AONBs, Conservation Areas and- at a smaller scale- gardens (with more stringent development controls). All land would be put into one of these three categories. The hope is that this could halve the amount of time it takes to secure planning permission on larger sites identified in Plans.

An alternative option put forward is to have a more binary model, which would combine Growth and Renewal areas into one category and extend permission in principle to all land in that area based on the uses and forms of development specified for each sub-area within it. Or, automatic permission in principle could be limited to land identified for ‘substantial development’ (with that term defined in policy to remove any debate about it) in Growth areas, with other areas of land subject to the existing development management process.

That Local Plans should set clear rules rather than general policies for development. General development management policies would be set out nationally, with a more focused role for Local Plans in identifying site-specific and area-specific requirements such as broad height limits, scale and/or density limits for the land included in the Growth and Renewal areas. They would be produced alongside locally-produced design codes on a twin-track basis. The idea is to scale back the detail and duplication contained in Local Plans and to encourage a much greater focus on design quality at the local level. It is also hoped that Plans would be significantly shorter in length (“we expect a reduction in size of at least two thirds”) once they no longer need to contain a long list of policies but just a core set of standards and requirements for development.

Alternatively, rather than removing the ability for LPAs to include general development management policies in Local Plans, where exceptional circumstances necessitated a locally-defined approach then the scope of such policies could be limited to specific matters and the way they are written could be standardised. Or, a similar level of flexibility to now could be allowed, save that policies duplicating the NPPF would not be allowed.

The replacement of the existing tests of soundness with a single statutory sustainable development test. The hope is that a simpler test along with more streamlined plans should mean fewer requirements for assessments which add disproportionate delay to the plan-making process. The Sustainability Appraisal system would be abolished and replaced with a simplified process for assessing the environmental impact of plans and the Duty to Cooperate would be removed, with further consideration to be given to the way in which strategic cross-boundary issues such as major infrastructure of strategic sites could be adequately planned for (including the scale at which plans are best prepared in areas with significant strategic challenges). A slimmed-down assessment of deliverability for the Plan would be incorporated into the sustainable development test, with Plans informed by appropriate infrastructure planning and sites not included in the Plan where there is no reasonable prospect of any infrastructure needed coming forward within the Plan period.

Alternatively, rather than removing the existing tests of soundness, they could be reformed to make it easier for a suitable strategy to be found sound, for example by being less prescriptive about the need to demonstrate deliverability with the LPA being required instead to identify a stock of reserve sites which could come forward for development if needed.

For Local Plans to be visual and map-based, standardised, based on the latest digital technology and supported by a new standard template to support the standardisation of Local Plans across the country.

A statutory timetable for both LPAs and PINS of no more than 30 months in total for key stages of the Local Plan process, with sanctions by way of Government intervention for those who fail to achieve this. A longer period of 42 months is proposed for authorities have adopted a Local Plan within the last 3 years or where a Plan has been submitted for Examination.

It is proposed that the process covers five stages:

- Stage 1 (6 months)- the LPA calls for suggestions for areas under the three categories, with meaningful public engagement at this stage.
- Stage 2 (12 months)- the LPA draws up its proposed Local Plan and produces any necessary evidence to inform and justify it, with mandatory PINS advisory visits for ‘higher-risk’ authorities to ensure the Plan stays on track prior to submission.
- Stage 3 (6 weeks)- the LPA submits the Plan to the Secretary of State for Examination together with a Statement of Reasons to explain why it has drawn up its Plan as it has and simultaneously publicises it for public comment.
- Stage 4 (9 months)- a planning Inspector considers whether the three categories shown in the proposed Local Plan are ‘sustainable’ as per the statutory test and accompanying national guidance and makes binding changes necessary to satisfy that test. A right to be heard by the plan-making authority and all those who submitted comments.
- Stage 5 (6 weeks)- the Local Plan map, key and text are finalised and come into force.

Alternatively, it is proposed that the existing Examination process could be reformed in order to speed it up, with some less complex or controversial plans perhaps (as with Neighbourhood Plans at present) examined through written representations only. Or, the Examination stage could be removed entirely with LPAs required instead to undertake a process of self-assessment against set criteria and guidance and PINS utilised to audit a certain number of completed plans each year.

Faster and more certain decision-making within firm deadlines, with the time limits of 8 or 13 weeks from validation to determination being firm rather than aspirational and subject to extension. This should be incentivised, perhaps by providing for the automatic refund of the planning fee for an application not determined within the time limit or even deemed permission in some types of applications in these circumstances.

A ‘radical’ and ‘profound’ re-invention of the ‘ambition, depth and breadth’ with which LPAs engage with communities as they consult on Local Plans. The desire is to “move the democracy forward in the planning process”.

The retention in the reformed planning system of Neighbourhood Plans, as an important means of community input and an “important tool in helping to ‘bring the democracy forward’ in planning”, is supported, with their continued use and spread encouraged. Consideration is to be given to whether their content should become more focused to reflect the proposals for Local Plans and also as to whether there is scope to extend and adapt the concept so that very small areas such as individual streets could set their own rules for the form of development which they are happy to see.

It is also proposed that there be a standard method for establishing housing requirement figures, which would differ from the current system of local housing need in that it would be binding in order to drive greater land release.

Other points to note:

Speed in the system

It is proposed that there needs to be a stronger emphasis on the faster delivery of development, especially for Growth areas where substantial development has been permitted. Therefore, there should be a presumption that sites identified through the new Local Plan process for substantial development over the next ten years and for which developers have secured planning consents will be built out quickly.

The HDT and the presumption

The Housing Delivery Test and presumption in favour of sustainable development will remain as part of the new system, given that having enough land supply in the system does not guarantee that it will be delivered. (A separate consultation has been published on proposed changes to the standard method for assessing local housing need which is currently used in the process of establishing housing requirement figures, with the future application of the formula proposed in the revised standard method consultation to be considered in the context of the proposals set out in the Paper).

There is a particular emphasis on ensuring that facilities and infrastructure such as schools, hospitals and GP surgeries are delivered quickly through the planning system.

Role of planning judgment in the system

It is proposed that detailed planning decisions should still be delegated to planning officers where the principle of development has been established, as those matters should be principally a matter for professional planning judgment.

Right of appeal

The right for applicants to appeal against a decision by a local planning authority will also remain, but it is hoped that ensuring greater certainty about the principle of development in Local Plans will result in seeing fewer appeals being considered by the Planning Inspectorate. For those matters that do go to appeal, the appeals process should be faster, with the Inspectorate being more digitally responsive and flexible. In order to promote proper consideration of applications by planning committees, where applications are refused, it is proposed that applicants will be entitled to an automatic rebate of their planning application fee if they go on to be successful at appeal.

Call-in