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Planning for the future – the government consults on major changes to the planning system in England

Bob Pritchard looks at the recent publication of a White Paper on proposals to reform the planning system in England.

The beginning of August saw the publication of a White Paper on proposals to reform the planning system in England. In his introduction to the document, the Prime Minister set the scene for a radical overhaul of the current regime by promising “Not more fiddling around the edges, not simply painting over the damp patches, but levelling the foundations and building, from the ground up, a whole new planning system for England.”

So, how is this all to be achieved?

A new role for Local Plans

Perhaps the most eye catching departure from the current system are proposals to recast the role of Local Plans from the promotion of local policies against which planning permissions should be determined, to zoning tools which will provide an additional source of outline planning consents. The emphasis in the White Paper is on setting down clear rules rather than promulgating general policies for development. Whilst this will inevitably require a more forensic approach to drafting Local Plans in the future, the White Paper envisages that these documents will be considerably shorter than their current iterations. Any development management policies will be restricted to ‘clear and necessary site or area specific requirements’ alongside locally produced design codes, with general development management policies being contained in national policy.

The new style Local Plans will identify three categories of land. The first of these are ‘Growth areas’, which are ‘suitable for substantial development’. Here, outline approval for development would be automatically granted for forms and types of development specified in the plan. The second category is ‘Renewal areas’, which is intended to cover existing built areas where smaller scale development is appropriate. According to the White Paper this could include “the gentle densification and infill of residential areas”. The third category is areas that are ‘Protected’. These are sites where more stringent development controls will operate. In addition to Green Belt sites, examples of Protected areas given in the White Paper include Areas of Outstanding Natural Beauty, Conservation Areas, Local Wildlife Sites, areas of significant flood risk and important areas of green space.

When it comes to further approvals, the White Paper envisages detailed planning permission being secured in Growth areas in one of three ways; first of all via a reformed reserved matters process; secondly as the result of a Local Development Order prepared by the local planning authority and, finally, for exceptionally large sites including new towns, through a Development Consent Order. In the case of Renewal areas, again three mechanisms for securing additional consents are mooted, namely, a new consenting route giving automatic approval if a scheme meets design and other prior approval requirements, a ‘faster’ planning application process or finally through a Local or Neighbourhood Development Order. Development proposals can still be advanced in Protected areas using the traditional route of planning applications being made to the local planning authority, so the ‘protection’ of these sites from development is not absolute.

Turning to the legal test to be applied to the adoption of these new style Local Plans, a single statutory ‘sustainable development’ test will replace the current requirement to demonstrate ‘soundness’. Turning to ‘wider than local’ planning issues, the White Paper indicates that the duty to co-operate in plan making will be abolished, with ‘further consideration’ being given to a replacement mechanism for planning for strategic-cross boundary issues. The White Paper also proposes the abolition of the Sustainability Appraisal system and its replacement by a simplified process for assessing the environmental impact of plans. Similarly, the test of deliverability will be simplified and subsumed into the ‘sustainable development’ test. In terms of process, the White Paper proposes that local planning authorities and the Planning Inspectorate will be required, through legislation, to meet a statutory timetable (of no more than 30 months in total) for key stages of the plan-making process. The White Paper leaves open the question of what sanctions could be used to enforce this timetable.

Finally, Neighbourhood Plans will be retained under the new system but the government is considering whether their content should become more focussed to reflect the White Paper proposals for Local Plans.

‘Digital First’ approach to planning

In an attempt to move away from what is, in large part still a paper based system, the White Paper contemplates a change in emphasis “…. from a process based on documents to a process driven by data.” Local planning authorities will be offered support to use digital tools to facilitate “a new civic engagement process for local plans and decision-making”. With this in mind, the White Paper suggests that the new style Local Plans should be “…. built on standardised, digitally consumable rules and data, with the aim of enabling accessible interactive maps that show what can be built where.” This move towards digital planning will extend to other datasets that the planning system relies on, including planning decisions and developer contributions.

Design and sustainability

The White Paper places a good deal of emphasis on the notion of creating ‘beautiful places’. Measures to support this include the establishment of a new body to support the delivery of design codes across England and a ‘fast-track for beauty’ system to automatically permit proposals for ‘high quality developments’ that reflect local character and preferences. At local level, each local planning authority would be required to have a chief officer for design and place-making.

Turning to sustainability, the White Paper refers to measures to facilitate improvements in energy efficient standards for buildings to ensure net-zero is achieved by 2050. Finally, the White Paper hints at a revised approach to the protection of heritage assets.

Infrastructure funding and land value capture

The White Paper also seeks to tackle the perennial problem of how to fund infrastructure through the planning regime. The proposed solution is the introduction of a ‘single infrastructure levy’ to replace the current hybrid system which relies on contributions secured through section 106 agreements and also the community infrastructure levy. The intention is that the single infrastructure levy will be charged as a fixed proportion of the development value above a threshold, together with a mandatory nationally set, flat rate charge based on the final value (or likely sales value) of a development. Local authorities will be allowed to borrow against single infrastructure levy revenues with a view to their forward-funding infrastructure and accelerating delivery. The abandonment of alternative mechanisms to fund infrastructure will not, however, extend to the London Mayoral Community Infrastructure Levy and similar CILs adopted by combined authorities.

Currently, affordable housing is predominantly secured through the use of planning obligations. As these are to be abolished, the White Paper proposes that the single infrastructure levy can be employed to deliver affordable housing. This could be either a cash payment or secured through in-kind delivery on site.

The White Paper proposes to extend the scope of the single infrastructure levy to better capture changes of use even where no additional floorspace results and also for some permitted development including office to residential conversions and the new demolition and rebuild rights. Given the increased emphasis on the use of permitted development to contribute to the housing requirement there is a case for ensuring that it also plays a role in funding infrastructure.

National binding housing requirement

The long-standing government target of building 300,000 new homes annually features in the White Paper. A revised standard method is proposed to distribute this target taking into account factors such as the size of existing urban settlements, the relative affordability of places, land constraints and opportunities to better use brownfield land. This will give rise to a ‘binding’ housing requirement that local planning authorities must deliver through their Local Plans. However, the White Paper suggests that local authorities will have a degree of autonomy when it comes to deciding on how their requirement will be delivered and refers to the possibility of agreeing an alternative distribution in the context of joint planning arrangements. A possible role for Mayors of combined authorities to oversee a strategic distribution of the requirement that alters the allocation of numbers is also mooted.

The government has sufficient confidence in its new proposals to deliver housing to signal an end to the requirement to demonstrate a five-year supply of land for housing. However, it is proposed to retain the Housing Delivery Test and the presumption in favour of sustainable development to underpin delivery in the revised system.

Accelerating delivery

The White Paper includes reference to policies in a revised National Planning Policy Framework aimed at ensuring that sites accommodating ‘substantial development’ are delivered promptly. The proposal here is to require masterplans and design codes to include a variety of development types from different builders with a view to allowing more phases to come forward together. Measures aimed at encouraging SMEs and new entrants to the sector also feature, with a commitment to consult on options for improving the data held on contractual arrangements used to control land and a promise to explore how publicly-owned land disposal can support the SME and self-build sectors.

Moving to the new system

The White Paper acknowledges the need for transitional arrangements to ensure a ‘smooth transition’ to the new regime and making sure that recently approved plans, existing planning permissions and any associated planning obligations can continue to be implemented. The nature and duration of these arrangements is, however, not clear from the document.

The White Paper is accompanied by an additional consultation on four shorter-term measures. These are:

  • changing the standard method for assessing local housing need (which will be of relevance to the proposals set out in the White Paper);
  • transitional arrangements to secure ‘First Homes’ to be sold at a discount to market price for first time buyers;
  • a temporary raising of the small sites threshold below which developers do not need to contribute to affordable housing up to 40 or 50 units; and
  • extending Permission in Principle (a form of planning consent which establishes that a site is suitable for a specified amount of housing-led development in principle), to major development with a view to ‘fast tracking’ housing delivery in the short term.

Have Your Say

The continued move towards a zonal system of planning heralded in the White Paper comes as no particular surprise. The question is, will this set of proposed reforms result in an efficient and transparent system which makes land available in the right places for the right form of development? We have until 11:45pm on 29 October 2020 to respond to the consultation and express our views.

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