A summer of planning reforms - the best of the rest

Hogan Lovells

Hogan Lovells

Whilst the three previous articles in our series on planning reform have considered the main changes in the Planning White Paper, there are many more recent far-reaching proposals, both in the Planning White Paper and elsewhere. In our final article of the series, we take a high level look at the "best of the rest" of these proposals.

The White Paper that keeps on giving

Although perhaps not as headline grabbing as the introduction of Growth Areas, or the abolition of CIL and Section 106 contributions, there are other key points to note within the White Paper.

Digital revolution

The need to move with the times and embrace technology within the planning system is a consistent thread throughout the White Paper. This includes, for instance, the vision of interactive Local Plans, enabling landowners to clearly see what would be permitted for a particular area of land at the click of a button.

There is also a clear desire to update the consultation process to make the most of the opportunities technology and social media provide for public engagement.

Any such modernisation is to be welcomed, provided it does not inadvertently worsen public access. For example, making it easier to find details of proposed planning applications on websites would be a positive step but should not be at the expense of local site notices. These provide a clear and easy way for local residents to know what is proposed in their area. Putting it all online could further exacerbate the mistrust many feel towards the development industry. There is also scant detail on how these technologies will be developed and funded and it seems that aspiration may trail reality on this.

Meeting the cost

The White Paper states that the planning system should be funded mainly by the beneficiaries of that system - landowners and developers - not the taxpayer. It therefore proposes to revise planning fees, so that they cover “at least” the full cost of processing that particular planning application. Whilst it is accepted that some local planning activities would still be funded through general taxation, it is very likely that there would be a significant increase in planning fees overall.

Additionally, the White Paper says that the Planning Inspectorate and statutory consultees should become "self-financing" through new charging mechanisms. In reality, this also points to applicants and appellants paying for these services, again increasing the financial burden on those seeking planning permission. Given the rhetoric around removing barriers to the planning system for SME developers, it seems inconsistent for the government to propose increasing the financial burden.

Stronger enforcement

The government says that it wants to see local planning authorities (LPAs) focus on planning enforcement, and says it will strengthen existing powers to support the new system. How, remains to be seen. Although the White Paper says the government will consider introducing more powers to address intentional unauthorised development, possibly higher fines, and other ways to support enforcement activity, there is no detail. At this stage it isn’t clear how the government proposes to deliver on this, although evidently it thinks some are getting away with too much.

Fixing the system we have

Whilst the Planning White Paper focuses on overhauling the planning system, a separate consultation titled “Changes to the current planning system” sets out more focused proposals to revise the current system. This sets out four key proposals:

changes to the standard method for assessing local housing need. The government wants to achieve “a more appropriate distribution of homes”. It has proposed that affordability be factored into the calculation, to ensure that housing need is highest where homes are least affordable, as well as having a minimum requirement of at least 0.5% of existing housing stock. Whilst this avoids the current issue of potentially calculating zero need in some locations, it still doesn’t address the concentration of demand in many of the places least able to accommodate it;
securing "First Homes" – homes sold at a discounted market price for first time buyers. This would apply irrespective of local policy requirements, potentially reducing the number of affordable rental homes provided. There is still no certainty on the level of discount required. Whilst the minimum is 30% it is suggested that LPAs could require up to 50% discount. This would have real viability implications, and could again impact on the other affordable housing which can be provided by a scheme;
revising the small sites threshold, so that developers can deliver up to 40 or 50 units (instead of 10) before being required to provide affordable housing. This would initially be for 18 months whilst the impact was assessed. The stated aim of these measures is to help SMEs. However, there is nothing limiting the application to SMEs, and instead all developers would seemingly benefit, again reducing the overall quantum to affordable housing;
extending the Permission in Principle regime to include major developments, which do not require an Environmental Impact Assessment. This regime includes a first stage, where it is established whether the principle of land use and a specified scale of development is appropriate on a given site. This is followed by a second “technical details consent” stage.
  The new proposals would mean that projects of up to 150 homes or 5 hectares could secure Permission in Principle. This broadens the scope of the route considerably, and presumably we will see an increase in demand. However, given the lack of appetite for the route so far, not only from developers, but also funders, it seems unlikely that this will take off as a genuine alternative to securing planning permission.

Keeping the courts in check?

Finally, there is a less well publicised call for evidence relating to reform of the judicial review process. Whilst this isn’t focused directly on planning, there are implications for the development industry as judicial review can be used to challenge planning decisions. The consultation considers "which grounds and remedies should be available in claims brought against the government", suggesting that there may be a future distinction between the remedies available depending upon who the defendant is. As the Secretary of State is involved in determining many of the country’s most high-profile planning applications, we will be watching this with interest to ensure that the relief available to developers in those cases is not diminished inappropriately.

That's all… for now

So that brings us to the conclusion of our summary of the planning reform proposals published over the summer.

This isn't the end of the story, though. We are still waiting with bated breath for the guidance on the revised Use Classes Order, which was promised before the revisions took effect on 1 September. The industry will also be interested to see what the proposed revisions to the Environmental Impact Assessment process are, as set out in a consultation promised for the autumn. Given the government's clear desire to move away from the framework established by European law, let’s see how they flex their negotiating muscles, whilst also ensuring adequate environmental protection going forward.

We will, as ever, be keeping a close eye on the proposals and any other developments as they arise.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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