Autumn notes: new Act, new minister, no plan(s)
Our next housing minister?
Woolly jumpers. Red and orange leaves falling from the trees. And a new housing minister. Ah, yes. Breathe it in. Autumn has come to plan-land.
Now thick into the season of mists and mellow fruitfulness, but… are you keeping up? With the waves of news on planning law, policy and reform. How could you. How could any of us - in particular the housing minister(s). A few updates if they help on happenings since my now-ancient summer round-up - every one of which deserving a blog post on their own:
The Levelling-Up and Regeneration Act - it’s here. At long last. After, as Cilla Black would've put it, a lura lura months [Just a bit forced, Ed.?] A year and a half since its first reading. The landscape of planning law has changed! Or has it? More on that in a moment.
On LURA-related matters - nutrient neutrality. Remember that? The background was here, the Government’s proposed amendments were over here and, as you no doubt already know, they went down in flames in the House of Lords, and the Government now appears to have dropped the idea. Meanwhile, the CG Fry case I wrote about here is off to the Court of Appeal - probably in early 2024. So. We shall see.
The new NPPF - remember that? - well we knew it wasn’t coming until LURB became law. But we have LURA now. And we still don’t have an NPPF. Will we get it this side of 2024? I’ve given up trying to forecast. And whenever it comes, what exactly will it say? One wonders whether Theresa Villiers is quite the political powerhouse she may have been a year ago - democracy is a dangerous business. Might rumblings of it being published this month have to be silenced now that we have…..
A new housing minister. Welcome back to the ring Lee Rowley. For a second roll of the dice. As candidates go for “the problem with the English planning system expressed a single image”, here’s a strong contender:
Genuinely shocking, isn’t it? Of course, we still have Michael Gove at the tiller. For this evening at any rate. But not all is well in Secretary of State land. You may remember a decision in Cranbrook in Kent I wrote about here where Michael Gove refused permission against the views not only of the applicant (Berkeley Homes), but also the Council and the Planning Inspector. Well, that decision was quashed in the end by consent in the High Court. The M&S decision I wrote about here where (yet again) Gove rejected a scheme against the views of the planning authority and the Inspector is now subject to a legal challenge. We’ll see if that decision fares any better.
For those of you following the 2nd staircase requirement for buildings over 18 metres I mentioned here, we finally have the all-important transitional arrangements. Once the new guidance is formally introduced (and who knows when that will be) it’ll be a further 30 months before the requirement bites.
The new planning fees regulations are out. Into force on 6th Dec. Fees are going up up up. And no more free goes.
The threat to the nation’s Green Belt has reached such cataclysmic proportions that its size has increased (yes increased) by 860 hectares this year, which is on top of the almost 25,000 hectare increase last year. The Green Belt is the largest it’s been in at least 20 years.
Simon Jenkins - veteran of Planorak awards past - turned his inestimable wisdom back to planning recently, but before I could even get around to even being slightly snarky about it, Times columnist Robert Colville did it for me (and for all of you): here. Lovely stuff. With a first line we can all get behind: “Only two things are truly infinite. The universe, and the errors and hypocrisy of Simon Jenkins when writing about housing and planning.”
What had Simon J been banging on about this time? Well, he was desperately unhappy with the Labour Party’s proposals for planning reform at their conference. Nothing is a surer sign that these announcements have something hopeful to offer than the fact Simon seems really to dislike them. What have they said? Well, the package appears to include:
Maintaining the overall 300,000 homes a year target;
New towns (much more to say on them in future posts - Jenkins doesn’t like them either);
300 more planners (a start, but that’s fewer than 1 per authority 😬);
More powers devolved to Mayors;
Promises to review weaker performing parts of the Green Belt, aka “the Grey Belt”. I’ve been saying for a while that when it comes to Green Belt - the plank of English planning policy most known about, but least understood - the confusion starts with the name: it’s not all green and it definitely isn’t a belt. If Green Belt areas were called “urban containment zones” or something similarly unpoetic, more of us might understand what they are for. And I like “Grey Belt”. It’s smart. Pithy. Memorable. And makes a powerful point (i.e. the spatial function of the Green Belt has nothing to do with its “green”-ness).
No doubt about it, there there’s a lot in what the Labour team had to say to interest people like us. And what’s right at the heart of the message? The promise that under Labour we’ll have “no more councils refusing to develop a local plan because they prefer the back-door deals". I don’t know what kind of back doors he’s talking about, but the point about stalled local plans is critical. Without local plans, you can forget about the rest of it. You can kiss those 300,000 homes goodbye. And - on this score, like so many others - if Labour do end up taking over in 2024, it’ll be inheriting a right old mess.
The biggest skeleton in the closet? Let’s tell it like it is: plan-making in England has collapsed.
Our system depends on plans – we need them, lots of them, and we don’t have nearly enough:
Developments plans were embedded into the structure of our planning system almost from the start - by the Town and Country Planning Act 1947, which has flowed into the requirements of today’s legislation.
The system really becomes plan-led when we get a statutory presumption to follow the development plan which was introduced by the Planning and Compensation Act 1991.
That’s where we get the requirement still at the heart of the legal structure of the planning system to make decisions in accordance with the plan unless material considerations tell us not to. Albeit we note that is something LURA is about to change. More on that in a moment.
But anyway. To be plan-led, you need a plan to lead you.
But we don’t have nearly enough plans. Not even close:
There are 333 local planning authorities in England.
Each one is supposed to be reviewing and updating its local plan every 5 years. Now, lots of us know of particularly egregious cases of that not happening. Basildon and Castle Point last adopted local plans in 1998. St Albans in 1994. York takes the prize of course – it last adopted a plan in 1954.
But in fact these slightly more outlandish examples aren’t as rare as they sound: only around 1/3 of local planning authorities have plans adopted within the last 5 years. Which means – of course – that 2/3rds of authorities do not. Indeed, almost 1/3 of authorities in England haven’t adopted a plan in over a decade.
And what should worry us is that the position is now set to get much, much worse. If all authorities really were updating their plans every 5 years, we’d want 50 or so plans coming into PINS for examination every year. After the first NPPF in 2012 we had some years that aren’t too far off. But how many plans were submitted to PINS last year? Only 14. The lowest figure since the 2012 NPPF. How many plans were submitted to PINS in the 1st half of 2023? 5 😬.
So. We have our problem. We’re in the middle of a crisis of plan-making. Why is it happening? Lots of reasons. Plan-making is incredibly difficult:
It takes time – at present, an average of 7 years from start to finish.
It takes an enormous amount of money – over £1 million on average just for the authority.
It takes passionate and well-motivated people. Thank heavens our public sector is still blessed with lots of those people, but they’re fewer and further between than ever. This isn’t all about money, but we can’t forget that from 2010-2020, spending on local authorities’ planning services reduced by £1.3 billion— a reduction of over 55%.
It takes cooperation – within authorities, and between them. Since the abolition of regional strategies in 2010, the legal vehicle to deliver this cooperation has been the statutory duty to cooperate. One of the only things almost everyone seems to agree on in our sector is that the implementation of this duty has been a disaster. And albeit LURA will abolish the duty, we are a very long way from understanding what will take its place.
Plan-making also requires a climate of legal and political stability (arf arf). Since the first NPPF in 2012, we’re on our 16th housing minister on which see above (and our 7th since Feb 2022) and our 9th Secretary of State – albeit 2 of them are Michael Gove.
What are planning authorities doing faced with all of this… they’re downing tools. Up and down the land. Take Spelthorne - a right royal saga. The background, of course, is that members submitted a plan which they were clear from the start that they absolutely hated (check out the foreword). Well, hold on to your hats, because:
In September, the now-ex-housing minister wrote to Spelthorne warning them not to withdraw their local plan. It’s a corker. She decided to intervene to prevent the Council from withdrawing the plan and to proceed with its examination. Why? Because:
The least progress in plan-making has been made: More than 90% of English Councils have adopted a local plan since Spelthorne (February 2009). If the Council withdraws the plan, it would be left with one of the oldest adopted local plans in the country.
Policies in plans have not been kept up to date: The adopted local plan is now over 14 years old, and it is reasonable to assume, given the age of the plan, that many of the policies it contains will not be up to date.
There was higher housing pressure: I note in recent years that the Council has not performed well against the Housing Delivery Test and affordability in Spelthorne is worse than in three quarters of the country. I can therefore conclude that there is higher housing pressure.
All sensible enough points. But points which apply to authorities all over the country, as Spelthorne pointed out in a rollicking response which threatened a JR, including noting that:
Even a cursory review of the 61 Local Plans which are formally stalled, delayed or withdrawn throws up a number of Local Plans whose adoption dates are earlier than ours (Ashfield 2002, Amber Valley 2006, Hinkley and Bosworth 2009, Uttlesford 2005, Welwyn Hatfield 2003). Many of these have made much slower progress and are at a much earlier stage of review than us.
If the Government is to apply a consistent approach, then - at the very least - all of those Councils who have adopted plans older than ours and who have not yet got to Examination should also be sent an intervention letter to prevent withdrawal when they reach that stage.
Watch this space. But one thing is for sure. Nothing could be worse for the planning system than the chaos, delay and confusion which will be brought about by yet another shift of housing minister. Hey ho.
So. Lastly. LURA. You have questions? Don’t we all. The first thing you’ll need to know is whether any of it’s actually come into force yet. Nicola Gooch has you sorted on that one: see here. Long story short - most of the things you’re likely to be interested in (if you’re anything like me) have not come into force yet, and (for the most part) there’s no timetable for when they will. There's so much to cover in the Act - many moons of blog posts. But for now here’s a few headlines for you to chew on:
A whole new regulatory framework for plan making. Is it in force yet? No. It slightly softens the test for plans to pass at examination (which I wrote about many moons ago here). Once these provisions come into force, the question won’t be if a plan is “sound”. It’ll be if “it is reasonable to conclude that the local plan is sound”. A lower bar. Defining what soundness actually means is still a job for national policy. So we’ll have to see what the new NPPF has to say about that.
Section 38 of the Planning and Compulsory Purchase Act 2004 has been amended. I explained the key effects of the amendment here. Is the amendment yet in force? No. But when it does come into force, national “development management policies” will take joint pre-eminence in decision-taking with the statutory development plan. Not even really joint because if there’s any conflict between the two, national policy trumps. And now, to justify taking a different decision, material considerations would have to strongly “indicate otherwise”. Whatever that means. Don’t worry! The courts will have to start telling us before long.
Section 73 variations - which I talked all about here - are to be supplemented by an important new power. Is it in force yet? Nope. But when it comes into force, we’ll have a new route through to achieving quite chunky scheme amendments. You can change the development description. And conditions. And you can make changes which are not only material, but even… significant. Very significant. So long as the effects of your new scheme are not “substantially different” to those of the permitted scheme (again, years of litigation await us on what that means).
One of the worst clauses in LURA: a new power to decline to determine applications when the applicant - or someone connected to the applicant - has a record of, in the authority’s opinion, being “unreasonably slow” to build out other developments in the area. In force yet? Nah. What does that actually mean? How would it work? What does unreasonably slow actually mean? All of that is for future regulations.
Loads of other areas - national development management policies, street votes, new environmental outcome reports to replace e.g. EIA… none of it’s in force for the moment.
Overall, LURA is only half the battle. It may be less than half the battle. The regulations which put flesh on its bones will be enormously important. And beyond that, what really remains to be seen is whether LURA is even targeting the right problems. The issues - which I spell out above - which are actually slowing plans down or stopping them in their tracks altogether. Well. We shall see.
In the meantime, don’t despair. I know it’s only November. But you’ll have felt that certain electricity in the air. The nights have drawn in. The odd strain of Bing Crosby or Mariah Carey in the shopping centres. Which can mean only two things: (1) the Pret Christmas sandwich is BACK, and (2) roll out the red carpet, dry-clean your poshest of frocks, because nominations are open for the 2023 🏆 #planorak awards 🏆. Wow. What will the judges make of the last 12 months. What a year it’s been. Watch this space! And, whatever else you do, through all the madness… stay well, #planoraks. These are heady days, but it's more important than ever to #keeponplanning.
