A whole new planning system for England?

August 10, 2020

By Peter Dixon

On 6 August the Government announced two consultations on reforms to the planning system in England.

The first, ending on 1 October, concerns a series of short-term measures intended to “improve the immediate effectiveness” of the current planning system. They comprise:

  • Changes to the standard method for assessing local housing need
  • Arrangements for securing ‘First Homes’ (homes sold at a discount to first-time buyers) through developer contributions pending wider reforms
  • Temporarily lifting the small-sites threshold at and below which developers are not required to contribute to affordable housing to 40 or 50 units, at least in urban areas
  • Extending the scope of the existing ‘Permission in Principle’ regime to include major development.

All are to a greater or lesser extent aimed at boosting the supply of new housing and link with the measures proposed in the ‘Planning for the Future’ White Paper which is the subject of the second consultation exercise, ending on 29 October.

The White Paper’s proposals are described in a foreword by the Prime Minister as “radical reform unlike anything we have seen since the Second World War.”  They involve, he says, “levelling the foundations and building from the ground up a whole new planning system for England.”  Such change is needed, he continues, because the existing system is an “outdated and ineffective” relic from the middle of the 20th century.

The major criticism levelled at the existing system is that although it is described as plan-led it is in reality discretionary in nature, requiring decisions to be taken not just having regard to the local plan but also to other material considerations with the result that the decision-making process is unpredictable, particularly were local plans are not up-to-date, leading to uncertainly and delay in the delivery of necessary development, particularly housing.  Such a system is, it is said, insufficiently rules-based.

The new arrangements would attempt to tackle uncertainly and delay by greatly streamlining the local plan process and linking planning decision-making more directly to the policies in the local plan, with the result that development in accordance with the local plan will receive automatic planning permission in certain circumstances. The permitted development regime would also be expanded, including possibly in respect of ‘routine’ listed building consent. The use of Local Development Orders (and Neighbourhood Development Orders) as a means of granting planning permission is emphasised. Environmental appraisal and environmental impact assessment would be simplified. A new form of Infrastructure Levy would replace CIL. Funding for the new planning system would come primarily from developers and landowners, rather than national or local taxation.

The foundations of the new system would be built upon new-style local plans that would be required to designate land in one of three categories: protection (e.g. Green Belt, Conservation Area, etc); renewal (e.g. existing built-up areas or already developed land); or growth (e.g. land required for new housing or employment development).  It appears as if plans would not contain topic-based policies or development management policies as such with greater reliance upon the National Planning Policy Framework and other guidance produced by central government instead.

Land designated for growth would automatically benefit from outline planning permission for the intended development – although it appears as if what is meant by ‘outline’ is something more akin to existing ‘permission in principle’  – subject to the requirement for an overarching master plan for the area concerned and for locally produced design codes to regulate the subsequent details. To assist the process, model National Design Codes are proposed. It is suggested that the details would be approved either under a reformed reserved matters procedure or possibly under a Local Development Order.

Land designated for renewal would be subject to planning controls akin to the existing system, but with a strengthened presumption in favour of development and with a new ‘fast track to beauty’ by which certain pre-specified forms of development or the redevelopment of certain types of building would benefit from automatic planning permission if certain design and prior approval requirements were satisfied.  The scope of permitted development is to be further widened to permit the “gentle intensification” of urban areas.  Again, the use of Local Development Orders is emphasised.

The protection designation is intended to encompasses existing policies and designations such as Green Belt, Areas of Outstanding Natural Beauty and Conservation Areas.  Again, something akin to the existing planning application system would be retained in protection areas. The parallel system of control over listed buildings would also be retained, although possibly modified and/or simplified to remove the need for express consent for certain operations.  It is suggested that certain architects might be granted “autonomy” from the need to obtain listed building consent in order to allow local planning authorities to concentrate their efforts elsewhere, on more significant cases.

The intention is that plan-making would be considerably quicker than at present. A target for new-style plans to be adopted within 30 months is suggested.  One reason for increased speed is that plans would be considerably simpler than they are now: visual and map-based and based upon a standard template along with standard national development management policies.   The local plan examination process would also be simplified with plans subject to a single ‘sustainable development test’ (although what that would consist of is not explained).   The duty to co-operate would be abolished (although the White Paper suggests that how to deal with cross-border issues will require further consideration) and the deliverability test would be simplified.

The Government is anxious to offer reassurance that the new, simplified arrangements and the deliberate intention to limit the discretion of local planning authorities will not mean that the new arrangements will be less democratic. As the White Paper puts it, there would be more democracy taking place more effectively at an earlier stage, meaning in the local plan process, facilitated by a digital-first approach to the whole planning process in order to promote greater civic engagement – no more notices on lampposts as the Prime Minister put it.

Similarly, the White Paper stresses that there would be no reduction in the quality of development under the new arrangements. For instance, apart from the ‘fast track for beauty’ the outline planning permission for local plan compliant development in growth areas would be subject to a master plan and design codes to regulate the subsequent technical details.  All new streets would be tree-lined (subject to a consultation on revisions to the National Planning Policy Framework in the Autumn). Environmental appraisal and environmental impact assessment are to be retained in some form, but simplified and made quicker in ways yet to be explained. The ‘bio-diversity net gain’ proposals in the Environment Bill will be implemented.  Planning enforcement powers and sanctions would be strengthened.

To ensure the delivery of necessary infrastructure, the Community Infrastructure Levy would be replaced with a new Infrastructure Levy charged as a fixed proportion of development value above a specified threshold with a mandatory national rate or rates and the current system of planning obligations abolished.

Finally, the costs of operating the new system would be funded primarily by the beneficiaries of planning gain, i.e. developers and landowners, rather than national and local tax payers.  The Planning Inspectorate as well as some statutory consultees should become self-financing by developing charging mechanisms for their services.

The proposed changes would therefore affect every part of the existing planning system. Whether they truly involve levelling the foundations and starting again from the ground up is open to debate.  Although different from the existing system in a number of important ways, the new arrangements do not look completely unlike the existing ones although the respective roles of the constituent parts would certainly change significantly. Whilst it would still be possible to obtain planning permission by making a planning application in the old-fashioned way, many if not all outline planning permissions (or their equivalent) would be obtained automatically by virtue of a local plan designation, a Local Development Order, or an expanded national permitted development regime. Local authorities would still be responsible for allocating land for development or protection and for taking detailed development management decisions, but planning policy would be largely the preserve of central government. For developers and landowners, the promise of a simpler, more predictable and faster planning system would come at the price of the lion’s share of the costs of operating it.

At this stage, most of the detail behind the changes remains to be seen. The next few years are likely to be interesting ones for the planning community.