The Government’s proposed planning reforms: ‘Build Back Better’ or just ‘Build Build Build’? – by Dominic Woodfield
The Government has recently published proposals for ‘fundamental reform’ of England’s planning system. The White Paper Planning for the Future sets out the Government’s vision for a streamlined and digitised system that aims to drastically speed up the genesis and adoption of local plans, planning decisions and the delivery of housing and other development.
The grounds for reform are that the system first established by the Town and Country Planning Act in 1947 has, after 70 years of tweaking and minor reforms, become a complex, cumbersome and impenetrable morass of policy documents and case law that discourages fulsome public participation and stymies the delivery of homes and other development.
In fact, much of the White Paper is given over to setting out in long detail the complaints that the Government has with the current system. These passages amount to a long, slow tolling of the funeral bell for the Town and Country Planning Act (“We propose … replacing the existing primary and secondary legislation”), but what is also apparent as an undercurrent is a narrowing of focus onto urban delivery with a reduced role for planning in rural and countryside environments (the word ‘rural’ does not appear until page 29 of the document and the word ‘countryside’ appears just three times).
The loss of public trust in the planning system, with the White Paper claiming that only 7% trust their local council to make good decisions about large-scale development, is cited as one of the justifications for ground-up reform. The suggestion that local planning authorities (LPAs) are the sole guilty party here is simplistic. It overlooks that the imbalances in the system are as much or more about the imbalances in power and influence between planning authorities and developers. These imbalances have their origin in public sector cuts and the undermining of both the authority and autonomy of local authorities by central government. Planning authorities are, these days, often simply too scared to resist or to try to dictate the shape of major developments backed by well-heeled developers, knowing the heavy financial toll of protracted battles to defend refusal decisions or appeals against non-determination. This can leave local communities feeling betrayed and disenfranchised. That is not to say that planning authorities are unblemished victims: they have further undermined public trust by too often taking it out on the little guy, remaining sufficiently emboldened to high-handedly refuse decisions at the level of the small developer or householder level that they would never dare to refuse at major development level. This further erodes the public confidence in the system and underscores their perception that it is not a level playing field.
The allegation that the extant policy framework “makes it almost impossible for public sector planners to insist on beautiful and sustainable new homes and places” is similarly mistargeted. It is not the policy framework that stymies innovation but fear of the financial consequences of planning battles arising out of being insistent about high quality design. This is actually an argument for tighter not looser policies and regulation, as well as an argument for better support for local planning decisions at national level.
There are five main planks to the sweeping reforms and I discuss each below:
1. Simplified zonations, deemed or automatic consents and streamlined consultations
A central thread of the proposed reforms is the simplification of forward and spatial planning into three main zones: ‘Growth’ zones where development would typically be granted an automatic outline consent, ‘Renewal’ zones where infill development and ‘gentle densification’ (say, what?) would be appropriate, and ‘Protected’ zones to secure our built and natural heritage and the designations that already apply to it. The White Paper claims that this simplification could “halve the time it takes to secure planning permission on larger sites identified in plans”. This is unevidenced. In fact, the objective to award outline planning permission automatically in Growth areas, would surely deliver a 100% improvement on the timescale to outline permission in such areas so it is actually odd that more is not made of that.
There is an incongruity between the suggestion that the reforms will give greater power to local decision-making and the proposal to “set out general development management policies nationally” whilst stripping them out of local plans. This sounds like top-down, not localised decision-making. On the other hand, the objective to remove generic policies and tackle unnecessary replication in Local Plans and reduce their length is unlikely to be contentious and I, for one, welcome it.
On the other hand, the proposals to streamline the consultation process at planning application stage raise red flags. This sounds like an attack on the democracy of the process on the basis of “you missed your chance at Local Plan stage”. As anyone who has worked in or with the planning system knows, a very great deal can change between the allocation of land-uses at the Local Plan stage and what comes forward as actual hard proposals. How will imaginative interpretations of Local Plan objectives by developers be challenged by a watered-down system of consultation at application stage? There has to be real concern that these proposals set the scene for objections against ‘goalpost changing’ to be dismissed, however valid, at detailed application or reserved matters stage on the grounds that the ‘main’ consultation period has passed and there is now a pressing need to get the thing across the line in order to meet targets. Similarly, the implications of reducing the Duty to Cooperate seem uncertain and potentially negative. Are we likely to see a return to the dumping of unpopular developments near to the boundaries of administrative areas?
‘Protected’ areas would include Green Belt, Areas of Outstanding Natural Beauty (AONBs), Conservation Areas and areas of significant flood risk. The White Paper falls short of suggesting that these areas would be sacrosanct, but implies they would be afforded at least the same level of protection as they enjoy at present. Pointedly, the top tier of wildlife designations (European Sites, Sites of Special Scientific Interest (SSSIs), Ramsar Sites) get no mention, but rather surprisingly, Local Wildlife Sites are included. Their inclusion hints at some degree of consolidation of the protection afforded to these non-statutory designations; if we are serious about halting biodiversity decline, then this is surely to be welcomed, but one feels this is bound to be fiercely resisted and may not make it into the statute book. The absence of mention of European Sites and Ramsar Sites has to raise warning flags with those who believe the post-Brexit climate will see the stringent protection afforded to such sites denuded.
2. Increased digitisation and automation, and improved enforcement
The proposals for more visual, map-based, shorter and standardised Local Plans are likely to be non-contentious, albeit the point has to be made that digital changes are arguably well in train within the existing system, although cross-authority consistency could certainly be improved. Just as welcome are the proposals to “strengthen enforcement powers and sanctions”. This would definitely help restore public confidence – the problem is that no new financial resources are proposed to fund this. The supposition is that resources will be released from other planning work streams, but this is unevidenced and does not appear to have been modelled or quantified. Similarly, the “comprehensive resources and skills strategy” that the Government proposes to develop for the planning sector is a further positive proposal somewhat let down by an absence of detail of how it will be resourced.
The proposals for increased digitisation and accessibility of the planning system may well lead to greater public involvement earlier in the spatial planning process, however it is concerning that while the White Paper states “we will make it much easier for people to feed in their views through social networks and via their phones”, it does not say how this greater level of community involvement will be processed and how dissenting views on the direction of forward planning and planning decisions will be better accounted for. This fails to recognise that one of the great failures of the system at present is that stakeholders often do not feel that their comments on applications get properly heard at committee level, as they pass through the bottleneck of a planning officer who may not always fully and/or accurately convey points (whether of support or dissent) to members of the committee. There are risks inherent in this system that political or other affiliations or previous prejudicial actions (such as off record agreements made with developers at pre-application meetings) can unfairly influence officers’ reporting. Coupled with the other regular complaint that members so rarely seem to have read or understood the material, and instead tend to rely unquestioningly on the recommendation of the officer, and the point of potential failure in the current system that is represented by planning officers is clear. Over and above the naïve subtext to the digitisation drive (that the computer will always get it right), the White Paper does not appear to offer any means to address these problems. The objective to try and shift the focus of public participation to earlier in the process is not enough. This is disappointing as improving the system so that outcomes are more clearly the product of democratic, accountable and transparent processes will of itself cut down the number of applications that go to appeal or are subject to legal challenge – which is after all one of the key objectives of the reforms.
3. ‘Beauty’ as a touchstone for policy-compliance
The (alarmingly few) commitments to ensure the reformed planning system is a facilitator for climate change mitigation and environmental improvements generally are worryingly nebulous and woolly. That of itself is a major fault and concern and other than bemoaning the missed opportunity for planning to take a much more proactive role in meeting these challenges, little more can be said about it. Instead, much more space in the White Paper is given over to delivering ‘beauty’. Indeed, it is a central thread.
The expectation that development should be “beautiful” and that ‘beauty’ should be fast-tracked sounds great, but beauty is not defined, nor is it explained how net gain in ‘beauty’ would be measured or how applications qualifying for the fast-track would be separated from the remainder. One or more exemplars would be useful here, but none are forthcoming. In their absence, one can take some measure of the Government’s thinking on this by reference to the illustrations in the White Paper. Several things are notable about this. One is the disproportionate focus on housing, which allies with the thrust of the White Paper itself and suggests that other land uses and their attendant planning matters and problems are less of a focus. Another is that it is notable that almost none of the illustrated developments are the product of the big names in housebuilding. Indeed, many appear to be merely the artist’s impressions or digital mock-ups that one sees at planning application stage, not the delivered reality of these schemes which (after the rigours of conditions, reserved matters, etc.) can be very different from the application submission material.
4. Fewer environmental assessments
The Government states that it wants to “[i]ntroduce a quicker, simpler framework for assessing environmental impacts and enhancement opportunities, that speeds up the process while protecting and enhancing England’s unique ecosystems”. This is likely to an area of particular interest to CIEEM members. I talk about this below in the context of ecology, but the same principles apply to a greater or lesser extent to other environmental disciplines, including for example hydrology and flood risk, landscape and historic assets.
The White Paper’s references to quicker, simpler frameworks are talking at least in part about metrics – spreadsheets that simplify otherwise often unavoidably subjective processes of assessment by pigeon-holing information into numerical inputs that you punch in and from which you get a numerical ‘yea or nay’ answer. In respect of ecology, these metrics are nothing new, and indeed the Defra 2.0 metric is already widely and commonly employed to test policy compliance in respect of the no significant harm and net gain where possible tests at National Planning Policy Framework (NPPF) 174-175, and is further set to be mandated for such use in the Environment Bill. As I have written about at length elsewhere, biodiversity metrics have their own set of problems and challenges, not least that ecology tends to resist attempts to simplify it quite so easily and automated systems are only as good as their designers and operators. Instead of repeating the detail of those concerns, I focus below on other avenues by which current systems of environmental assessment might be streamlined.
At plan level, the highly subjective and imprecise nature of Sustainability Appraisals (SA) has arguably not measurably improved the sustainability of Local Plans and has merely introduced a further tier of assessment over and above the obligation placed on LPA Inspectors to determine ‘soundness’. I would certainly agree that there is room to reduce unnecessary replication here. Arguably, both the soundness tests and the SA process would be better re-routed through ‘proper’ Strategic Environmental Assessment (SEA) that seeks to cover both of these factors, and which can (where relevant) incorporate Habitats Regulations Assessment (HRA) rather than have that as a further stand-alone assessment and document. Indeed, well produced SEAs and plan-level HRAs could reduce the assessment requirements for further or repeat Environmental Impact Assessment (EIA) and HRA at application stage, provided the information can be re-used and/or merely refreshed.
This leads us on to consideration of another area where improvements in speed and efficiency might be made. This is the extent of repetition and replication in data collection. The White Paper appears to suggest that better centralisation of and access to data will cut down on the survey requirements for individual developments – particularly in Growth and Renewal areas. There are a number of comments to make about this.
Firstly, the Big Data that would be essential for this to work is already out there. In many counties, local authorities have service agreements with autonomous local records centres (and some actively fund, host or otherwise support them). These records centres often have datasets extending into the millions of records, and they provide a bridge between planning and the activities of volunteers, charities and community groups. It is an open question whether best use is currently made of these organisations. A more formalised role for and improved financial support to these organisations is very likely to improve planning outcomes in terms of speed and quality of decision-making. They should certainly be involved in the drive for increased digitisation as they are likely to be able to bring advanced data management skills to the party.
All of the above said, there are serious black holes into which highly useful (and expensive) data is currently being lost. In particular, the survey data collected by environmental consultants for planning proposals is all too often lost once that planning decision is made. In fact, this is a constant source of frustration for consultants such as myself. Attempts have been made to improve the flow from consultants to data repositories, but this requires the effort mostly be taken on the consultants’ side with records centres often being inflexible about the formats they will accept. Active support to local records centres to ‘mine’ these data, and overcome any copyright issues in doing so, so that it is available to improve decision-making more widely, would be a very welcome improvement on the current systems. For their part, records centres need to be open to this change, as currently they are more focused on administering and managing records from the conservation sector and are arguably a bit ‘lazy’ about extracting data from planning files.
There is also room for a shift away from formulaic approaches by regulators, local government ecologists and parts of the nature conservation sector (and indeed by some consultants). The Prime Minister’s lament earlier this year about newt counting dragging down the system was misguided, but unnecessary expense and delay can be introduced to the system by the need for ecological surveys to be repeated time and again. It is not unusual for baseline ecological surveys which may run into the tens of thousands of pounds in terms of costs and take months at a time to complete, to be carried out at forward planning level, again at outline application level and yet again at conditions discharge and reserved matters level. Further surveys may then be required for monitoring purposes through and beyond the implementation stage. It is not altogether surprising that developers get sick of the sight of ecologists, and I can speak from personal experience in saying that ecological practitioners (some at least) take no pleasure in constantly re-verifying a conclusion already reached and unlikely to change and charging a client for the privilege of doing so. There are only so many times one can put two together with three and make five before it gets boring and pointless for everyone. One way of tackling this problem will indeed be through better use of Big Data, but there also needs to be a change in the attitude of regulators and local government ecologists away from requesting surveys just for the sake of requesting surveys. I believe there is a role here for ‘Earned Recognition’ to play a part, such that consultancies with an earned reputation for high standards and scientific rigour are allowed to take a view on the need to go out and carry out yet another set of monthly bat surveys for a site that has only ever had and is only ever likely to have a few common bats foraging over it. Earned recognition is already playing a part in streamlining protected species licensing regimes, so this does not seem an insurmountable jump to make to incorporate it into the planning system and into the process of validation of application material.
On the other hand, it must be remembered that biodiversity constraints can and do change over time, sometimes with surprising rapidity. However, the situations where change is most likely to occur over relatively short timescales are generally predictable. Today’s ancient woodland is likely to be tomorrow’s ancient woodland and, all other things being equal, a thorough survey today is unlikely to be irrelevant five years down the line. On the other hand, today’s nature-devoid demolition site is tomorrow’s brownfield site, and (after it has been left to its own devices for a number of years) tomorrow’s brownfield site may be of much greater value for biodiversity than any of the green fields that surround it. The planning lexicon is awash with examples of where forward planning has failed due to the apparent inability of the system and those working within it, to recognise this problem and to apply false preconceptions to land use classes. The streamlining of planning zones into ‘Growth’, ‘Renewal’ and ‘Protected’ areas does not, of itself, suggest that this lesson has been learned. Biodiversity is a moveable feast and the assumption that once land is zoned for development on the basis of it having low biodiversity value, it stays that way, is bound to create future problems.
Lodge Hill in Kent is one of the classic examples of where forward planning goes wrong. Assumptions about the suitability of the land for development were made at a high level and on paper in regional spatial strategies in the 1980s, and consequently a great deal of momentum built up towards realising this development potential before anyone really went and had a proper look at the biodiversity value of the site. This momentum was nearly unstoppable, and it took a powerful effort on the part of conservation organisations and the failure of two Local Plans to prevent the site being wholly lost to development (and it is still under threat). As it was ultimately awarded SSSI status, there are presumably few people who would attempt to argue it remains an appropriate development site and it would doubtless be placed in the ‘Protected’ land use class under the proposed new regime. But there is little doubt that Lodge Hill would originally have fallen into the ‘Growth’ zone of any LPA given its allocation in two Local Plans. Consequently, one test of whether the proposals in the White Paper are likely to secure existing protections and deliver improved biodiversity is to ask the question of whether Lodge Hill could happen again under the new regime, and if it did, whether the site would ultimately be protected and development diverted from it. The very fact that outline planning consent is assumed to be in place for developments within ‘Growth’ zones suggests that the reforms are unlikely to militate against the Lodge Hills of this world happening again.
Conclusions
The White Paper’s characterisation of planning as stuck in a 1970s world of notices on lampposts seems to be very much behind the curve and the broadside that the current planning system receives more generally in the first half of the White Paper would probably have been more relevant 10 or 20 years ago. Many of the proposals relate to changes already being put into effect. That’s not to say they are not welcome, nor that they should not be sped up and better coordinated or that further improvements cannot be made, but the combative foreword by the Prime Minister speaks to a view of planners and planning seemingly based more on assumptions and preconceptions than a comprehensive and in-depth review.
Trust in the planning system depends as much on enforceability and preventing broken promises as it does on improving access to the system by the public. There is no point involving everyone at forward planning stage if what those people feel they have achieved through engagement is not delivered at implementation stage. The White Paper is noticeably light on enforcement and monitoring: there is some recognition that it needs to be improved but no firm proposals to better resource and empower this part of the system. Yet this is as much a part of re-building public trust as anything else.
Overall, the White Paper appears very focused on (new) Build, Build, Build and very much focused on towns and cities. I would argue that in the light of the climate and biodiversity emergency the focus would be better directed towards Re-use, Restore and Refurbish. There is enough work to do through the channels of Re-use, Restore and Refurbish to cultivate a highly skilled labour market, address housing shortages and drive economic recovery, channelling development to the places where it is most wanted and needed. For example, in a post-COVID England, there is going to be an awful lot of commercial property available for re-purposing and the absence of consideration of re-purposing in the White Paper arguably puts it already out of date. Of course, the profit margins for large construction companies are unquestionably smaller for redevelopment of existing sites in town centres and suburbs as opposed to out of town greenfield sites, but reform should surely be aiming to rebalance and challenge this element of market forces for the sake of sustainability. I see no sign of that.
I agree that the streamlining of environmental assessment processes by tackling and where necessary removing unnecessary duplication and combating box-ticking approaches may free up resources that can be directed towards other more useful improvements. But there are no firm proposals for this. I would advocate redirecting these resources towards better monitoring and enforcement of delivery. If a housebuilder commits to building 200 homes and only builds 20 (or at the other extreme, builds 400), they will be pulled up as in clear breach of planning. The same outcome must be expected of situations where a developer commits to creating an acid grassland habitat, but actually creates something more akin to a playing field. The recent UN report lambasts all the signatories of the Convention on Biological Diversity, including the UK, for their abject failure to deliver on any of the targets set at Aichi 10 years ago. We are in the middle of a slow-motion tailspin of biodiversity decline and have yet to take any meaningful action to stop it. If the Government is serious about addressing this, it is no longer good enough for the planning sector to fiddle around the edges of the problem, or blame it on other sectors such as agriculture: planning has to step up and play a fuller part. Amongst other things, this means that net gain has to mean genuine net gain, on the ground and in the field, not just on a balance sheet. That will require monitoring, enforcement and (where necessary) sanction. Those who see planning as a force for good should have nothing to fear from that. Only those who see it as a game to be played would need to look over their shoulders.
Dominic Woodfield CEcol CEnv MCIEEM is Managing Director of Bioscan UK Limited, one of the UK’s longest established ecological consultancies with a diverse client base covering the development, public and charity sectors. He has expertise in a broad range of ecological disciplines with particular specialisms in terrestrial ecosystems and in ornithology, botany and protected species. His experience of Environmental Impact Assessment in its various forms extends over 25 years and covers housing, energy, minerals, transport and infrastructure projects. Dominic is regularly appointed to lead on the ecology components of the EIA process, but in the past has also co-ordinated and project managed the delivery of multi-disciplinary EIAs and their Environmental Statements. He is considered a leading practitioner in Habitats Regulations Assessment, being involved in recent legal challenges on the subject and has experience of other assessment frameworks including Water Framework Directive (WFD) assessment and the critique of Sustainability Appraisals. As an expert witness he has an excellent track record on ecological cases, having presented evidence on a diverse array of topics to planning inquiries, as well as to the Senior Courts and First Tier Tribunal, including in cases where he was himself the litigant. Dominic is an occasional guest lecturer at Oxford Brookes University and has written a number of articles for the nature conservation (and planning) press.
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