Beauty, Trees and Zoning
February 12, 2020
As the United Kingdom begins to plot a new course outside the European Union, 2020 has begun with a flurry of reports (doubtless with one eye on the forthcoming Planning White Paper in England) recommending changes to planning law and land use policies, whether in the interests of economic development, more beautiful places, nature conservation or combatting climate change.
With ‘exit day’ now behind us, the Government has been keen to strike an optimistic tone, promising to ‘unleash’ the country’s potential and ‘level-up’ the economic performance of the English regions. Perhaps not surprisingly, attention has turned once more to the part played by the planning system in assisting – or obstructing- economic development. A planning white paper is promised later this year and in January differing visions for a reformed planning system were presented in quick succession, one by the Building Better, Building Beautiful Commission (in a report entitled ‘Living with Beauty’) and another by the Policy Exchange (in ‘Rethinking the Planning System for the 21st Century’).
Both contain interesting analysis of the deficiencies of the current arrangements and share some common ground, particularly in noting how the ever increasing complexity of the planning process is often not matched by improved outcomes, whether in terms of housing delivery or high quality place-making. Both advocate a more streamlined development management process with simpler planning applications and quicker decision-taking. Both advocate better quality development and better-designed places. However, whereas the Commission envisage change within the framework of existing planning legislation, the Policy Exchange favour a fresh start, branding the current system not fit for purpose, backward looking, inflexible and unpredictable, in large part because of the impact of local political considerations on both forward planning and development management decisions.
In place of the existing system Policy Exchange recommend a move to a zoning system in which land is identified as either suitable or not suitable development with little control over the use or development of individual sites within the ‘development zone’ beyond a series of concise development management criteria which, if adhered to, would result in automatic development consent. Conversely, outside the development zone proposals, other than for very limited categories of development, would be automatically refused. Under such a system considerable importance would attach to the initial decision over where to draw the boundary of the development zone, but that decision having been taken, landowners and developers would benefit from the certainty of knowing on what terms development would be permitted and from considerable flexibility otherwise to respond to changes in market conditions and occupier demand. There would be no planning applications as such and therefore no unpredictable discretionary decisions by planning committees. There would be no local plans made out-of-date by technological innovation or by changes in economic conditions. Simplifications of the CIL and s106 regimes are also proposed.
The current system is, of course, in many respects the same as the one introduced in 1947. The Policy Exchange report helpfully provides a summary of the town planning arrangements which preceded it, in which local authorities were first empowered and then required to prepare town planning ‘schemes’ the effect of which was to authorise development where it was in accordance with their provisions. The authors cite with approval Sir Robert Megarry’s description of a town planning scheme as akin to “a local law” – unlike a local plan which merely offers an “informed prophecy” about what may or may not be acceptable on any given site.
Similar systems exist in other jurisdictions and can include extremely detailed site-specific allocations as to use, density and design. As the UK emerged from the Second World War, such a system was thought unduly rigid and whilst the arrangements which replaced it were ‘plan-led’ in concept, they allowed considerable discretion to the decision-maker to take into account material considerations outside the development plan when taking individual development management decisions.
The discretion is arguably an advantage because it allows flexibility for the decision-maker, for instance where the development plan that is out-of-date or where the development proposal is of a kind not contemplated when the development plan was prepared. It thereby provides a degree of insurance against some of the problems which Policy Exchange identify, notably the tendency for forward plans to be backward looking – at least to the extent that they embody forecasts of future development needs derived from evidence of past trends – and therefore prone to become out-of-date, sometimes surprisingly soon after they are adopted.
Policy Exchange argue that whether or not such inherent flexibility was an advantage in the past, it is a distinct disadvantage now, because planning committees are increasingly inclined to side with the vocal opponents of development rather than take the difficult decisions necessary to ensure that sufficient development is allowed to proceed.
That planning is a political process is unavoidable. When the modern planning system was established in 1947 the view was that development plans should be prepared and development management decisions taken at the county level in order to avoid the risk of excessive parochialism if decisions were taken at the urban or rural district level. Similar considerations motivated the implementation of strategic planning at the regional level under the last Labour government. However, that provoked a backlash against a perceived imposition of unpopular development on reluctant shire counties and districts by the regional tier which was argued to be too remote from the host communities to command their support.
The solution advocated by the Conservatives when in opposition (in the policy paper ‘Open Source Planning’), and then implemented after the 2010 election by the Conservative-led coalition government, was the abolition of regional planning and the promotion of neighbourhood planning, on the premise that the public would be more likely to ‘own’ difficult or controversial decisions if they were taken locally – part of the so-called ‘localism’ agenda.
Implicit to Policy Exchange’s analysis is that the experiment with localism has been un-successful, at least if measured by the time taken to obtain planning permission and the difficulties encountered in doing so. Policy Exchange place much of the blame on discretionary nature of planning decision-taking and argue that the role of local councillors in development management decisions in particular should therefore be reduced in order to thereby eliminate the attendant uncertainty. Once the boundaries of the development and non-development zones are defined and the associated development management criteria are adopted, local councillors would play no part in individual development management decisions under their proposals. That is very different to localism and begs the question of how popular support for and confidence in the planning process would be secured under the new arrangements?
The need for more public confidence in the planning process is a theme of the Building Better, Building Beautiful Commission report. Under the heading ‘communities: bring the democracy forward’ the report argues that the current arrangements for public consultation, which are focussed upon the development management stage, are simply too late in the process to make a real difference. Instead, the report urges more extensive consultation early in the development plan process and that public engagement should be “wide, deep and early.” The Commission argues that local planning authorities should have the capacity to undertake more meaningful, visually based, consultation on development projects using digital resources and that communities should be empowered to promote and undertake community development projects of their own through an expansion of Community Right to Build Orders and streamlined procedures for the designation and acquisition of Assets of Community Value. The proposition is that time spent at the development plan stage and at the grass roots level, will enable better decisions on the location and form of development and quicker decisions at planning application stage as a result.
It will be interesting to see to what extent such contrasting views of how to improve planning outcomes are reflected in the Planning White Paper in due course.