The impending changes to English planning rules promise the biggest shake up to the system in a century, with the Government aiming to deliver on their commitment to build 300,000 new homes annually. In certain parts of the country, however, particularly the rural South, the plans appear to have been ill-received by the public, despite the overarching worthy aim of encouraging young people onto the property ladder. The reform agenda was a key factor in the recent Chesham & Amersham by-election upset for the Liberal Democrats, who opposed the planning reforms.
The Bye-bye Election
The Chesham & Amersham by-election on 17 June 2021 saw a shock Tory defeat in a seat which, until now, has maintained a Conservative majority since its inception in 1974. Boris Johnson has attributed the defeat to “local issues” and a “wilful misunderstanding” of the proposed reforms. The proposals will continue to restrict development on Greenbelt land, but will facilitate development on “Brownfield” sites – potentially contaminated areas of land situated within the Greenbelt, which have previously been developed on and may be developed further subject to existing planning controls.
The Proposed Reforms
In August 2020, the Government published the ‘Planning for the Future’ White Paper [‘WP’], with the slogan “modernising the planning system to get Britain building”. Therein lay the Prime Minister’s commitment to “build back better” after the Covid-19 pandemic, with tremendous focus placed on the provision of new affordable housing. The sweeping reforms feature three ‘pillars’ of development, with the introduction of a ‘zoning’ system for the designation of land into ‘protected’, ‘renewal’, or ‘growth’ zones:
- Growth zones are to be earmarked for sustainable development, with planning permission granted at the local development plan stage, meaning new homes, schools, and community infrastructure will automatically be approved so long as local design standards are met [‘WP’ p. 28].
- Renewal zones will be suitable for development termed ‘gentle densification’. High quality development will pass through an accelerated process, otherwise the usual development approval will be necessary [‘WP’ p. 29]. This will be known as “permission in principle”.
- Protected zones such as the Green Belt and areas of outstanding natural beauty will be subject to stringent controls with development restricted in these areas [‘WP’ p. 29].
All new streets are to be tree-lined, and a single statutory ‘sustainable development’ test will replace the test of soundness at the examination stage [‘WP’ p. 31]. This will lead to a simplified environmental impact assessment. Although potentially leading to an “endless debate on the definition of sustainable development”, the new test could be “something as simple as a legal duty that the local plan should ‘facilitate’ or ‘promote’ or ‘secure’ the delivery of, or the achievement of, sustainable development” says Christopher Katkowski QC of Landmark Chambers. It is hoped that this will streamline the process whilst meeting environmental treaty obligations. The “gross oversimplification” of the process, however, has attracted criticism from green groups, arguing that the proposals will be “disastrous” for nature. If the Government is also to deliver on its 25-year Environmental plan, cross-disciplinary action and express protections for nature must be included in any forthcoming legislation.
A key aim of the proposals is to shift of the cost of operating the system onto its main beneficiaries – developers and landowners. This is to be achieved by replacing current Town and Country Planning Act 1990 s.106 agreements for developer contributions, and the community infrastructure levy, with a single consolidated national charge for developers set as a percentage of development value.
The paper promises that communities will be consulted at the beginning of the planning process, with locals able to raise objections at the development plan stage. There is to be a move from analogue to digital engagement, with interactive local plans to be produced on a shortened statutory 30-month timeframe [‘WP’ p. 20]. From this point onwards, however, local residents will be ousted. Following the adoption of a local development plan in growth zones, the grant of planning permission will be automatic. Residents, therefore, will be unable to raise objections to individual applications once the local plan is in place, removing a layer of public participation from the planning process.
Quality over quantity?
The move to digital planning seeks to improve public access to the system, reflecting a desire to hear from a wider range of community voices. Those without technology access, however, may be excluded, making digital planning potentially less inclusive and reducing the democratic legitimacy of decisions. At present, locals can object both at the local design plan stage and at the public examination stage. In their current form, the proposals remove the second opportunity for the public to be heard, deliberately preventing locals from blocking development in growth and renewal zones. Even with the focus on high-quality front-end engagement, the removal of the “right to be heard” on individual applications is likely to have the overall effect of decreasing public participation in planning, as developers will have already obtained “permission in principle”.
The erosion of public participation has led to opposition leader Sir Keir Starmer labelling the reforms a “developer’s charter”, yet Housing Secretary Robert Jenrick insists that the plans give communities a “meaningful say”. The Government is cognisant of the pressing nature of the housing shortage, and “NIMBY”-ism (the behaviour of someone who does not want development near where they live, i.e. “Not In My Back Yard”) is rife in affluent rural communities resisting development to preserve the amenity of their locale. Radical proposals such as these, therefore, appear to be necessary if Government is to deliver on its housing target, in spite of the risk of alienating conservative voters and backbenchers alike. It is essential, should the reforms be implemented, that locals be properly consulted at the design code stage to ensure that meaningful public participation is maintained.
Currently, around a third of planning approvals are reversed on appeal. It is no secret that the Government seeks a reduction in this figure. However, only the developer has a right of appeal – there is no third-party right of appeal in this country, as in other common law jurisdictions such as New Zealand. It is questionable, therefore, whether NIMBY-ism is indeed responsible for current number of permissions overturned.
Given that planning is a devolved matter, Wales has recently reviewed the case for third-party rights of appeal. This was done via an Independent Advisory Group Report, prior to the introduction of the Planning (Wales) Act 2015. It concluded that the risk of overburdening the system did not justify gains to be made by the creation of a third-party right of appeal. A key reason for this was the potential for vexatious appeals by local residents on ‘NIMBY’ principles. It instead recommended improving public engagement at the local stage, which it deemed adequate public participation in the process. This adds legitimacy to the English reforms proposing public engagement only at the local plan stage, allowing for quality over quantity.
Out of the several factors responsible for the by-election result, fears of excessive housebuilding in the countryside have been hailed as the most significant. Planning invokes strong passions within communities wishing to conserve the amenity of their area by resisting development. It is trite, however, that a severe housing shortage in the UK means that many young people are unable to purchase a home, therefore the reforms may hold the key to begin to “build back better”. Yet, public participation in planning is a cornerstone of a healthy democracy, and public officials must be accountable to the public for their decisions and consider the views of those affected. At first blush, the proposals appear to diminish public engagement by removing the opportunity to object at the examination stage.
To maintain democratic accountability in planning, community engagement at the local plan stage must be meaningful. If Government seeks to popularise the unpopular proposals, a public education campaign conveying the urgency in providing affordable housing may alleviate tensions, and that the provision of housing in turn helps to realise other economic and social objectives such as access to employment. To reduce current frictions, a fair balance need be struck between development and the protection of open green spaces. It is hoped that the zoning system, if introduced in its current form, will achieve this, ending the battle between the people vs planning in the South.