In the zone #2 - Welcome to “Growth” areas

Well, it definitely isn’t Euclidean zoning. Cripes, it might not really be zoning at all (see the cracking 2018 Lichfields paper on zoning systems around the world). There are still lots of discretionary policy-based judgment calls for local planning authorities to make - the antithesis of zonal planning. And the White Paper carefully avoids calling them zones. No - it’s “areas”. Areas for “Growth”, for “Renewal” and for “Protection” (I summarised the headlines on each of these categories here).

But you all saw the news last month, didn’t you? About automatic permission being granted for all kinds of important things. It sounded radical, didn’t it? It sounded zonal. And those of you in the business of developing land might have asked yourself: if “Planning for the Future” actually happens, how can I or my clients actually get one of these “automatic” planning permissions? And if we get one, what can we do with it?

To answer those questions, we need to zoom into the Government’s proposals for “Growth” areas. We’ll come back to the other areas in later posts. But it’s the “Growth” areas where the automatic permission magic happens.

So. Growth areas. What is the Government actually proposing?

1. They’re fixed by local plans. They’re for “substantial development” - one of those key terms which will be defined in the new NPPF then fought over for years - including new settlements, urban extensions, and areas for redevelopment like former industrial sites or urban regeneration sites. All excluding sites with “important constraints” (what does that mean? TBD) and areas of flood risk.

2. The new local plan maps the “Growth” area and any sub-areas + a key with permitted uses + limitations on height and density. Particular sub-areas picked out for mention in the White Paper include high-density housing, high streets / town centres, self and custom-build homes, and community-led housing developments.

3. In “Growth” areas, adopting the new local plan = “automatic” outline planning permission / permission in principle (🍾) within those use / height / density parameters.

4. But hang on. Re-cork those bottles. The permission might be “automatic”, but it’s not unconditional. Each “Growth" area needs (i) a masterplan and (ii) design codes - site-specific and authority-wide. The “automatic” permission is conditional on complying with both. Which makes them important documents. So, you may be asking yourselves, when will the masterplan and code be prepared? TBD. Could be at the same time as the Local Plan. Or afterwards (if afterwards, how is the poor local plan inspector supposed to work out whether the “Growth” areas in new local plans might actually meet local needs for retail, commercial space, housing etc? All TBD). How will these documents be prepared? TBD. Could be adopted as part of the local plan, as supplementary planning documents and/or in a neighbourhood plan. Some may come from the developer. How detailed do they have to be? TBD. How are they produced? TBD - but one thing’s for sure, the community has to have “effective input” (whatever that means) “considering empirical evidence of what is popular and characteristic in the local area”. So there’s a bit of a popularity contest. Give the people what they want. What if the design code doesn’t get that “effective input”? Well, then it gets no weight. So this is important stuff. We’d better hope the popularity contests don’t stifle innovation, variety, or the kind of everyday (if unexceptional) designs we’ll sometimes need to deliver schemes viably, and to get anywhere near that oft-repeated 300,000 homes annual target. Particularly in those areas - unlike leafy “Bath, Belgravia and Bournville” - where people may not have 10 times their income (or more) to spend on a house.

5. So to get from outline permission / PiP to a full permission you can actually build, the White Paper suggests 3 routes:

   • Reserved matters approvals (to be “reformed”, but TBD how).

   • A Local Development Order - which Councils can do already (see the PAS report on that topic). The LDO would be linked to the masterplan and design codes above.

   • For “exceptionally large sites” - e.g. many thousands of homes - a Development Consent Order under the Nationally Significant Infrastructure Projects regime. I talked a bit about this regime here, but more on this idea in another post. If you’ve two spare minutes, I asked Jan Bessell - who was the lead examining Inspector on some enormous DCO projects - about the idea here.

6. You can still apply for planning permission in what-we-may-soon-call the “old fashioned way” in “Growth” areas, i.e. for schemes which are outside the plan. But the idea seems to be a legally bolstered “plan-led” approach will tend to make those applications an uphill battle.

So - that’s the beginner’s guide to what’s being proposed for “Growth” areas. But what would all of this actually mean? Particularly if you’re trying to develop sites within what may be one of these new “Growth” areas? Here are 3 headlines:

1. Front-loading: You thought being allocated through the plan was important already? You ain’t seen nothing yet. Engaging fully - no holds barred, all guns blazing, no stone unturned, insert the metaphor of your choice - with the plan-making process will be (literally) more important than ever before. Every site being put forward for allocation in a “Growth” area is (more or less) making an outline planning application (pity the poor planning officers who actually have to process and evaluate all of this material). This is what we call “front-loading”. Big time. And the pressure is compounded by the new streamlined local plan process. No call for sites consultation then Reg 18 then Reg 19. Nope. You get 1 go to draft those reps which will get your site into the plan. That’s it. Then a chance to persuade an inspector why the authority got it right or wrong. But you’d better get your site into the plan first time around. Because with the trimmed down timetable for adoption, there won’t be much time for major revisions during examinations. And NB, if you’re in the game of housing delivery, your work needs to start well before the local plan process, i.e. when the Ministry starts producing its national housing plan (see my bit on that here).

2. Sliding scale: What being allocated in a “Growth” area actually means, how valuable your “automatic” permission is and how close it gets you to being able to “build build build” - all of that will vary enormously from plan to plan, and from place to place within each plan area. At one end of the spectrum, you may find your site in a “Growth” area subject only to height, density and use parameters. Hooray? Well, maybe. That leaves you with a huge amount of work to do on masterplanning, layout, design, infrastructure and other reserved matters before you have a consent that can be built out. With that work comes cost, and risk - i.e. risk of delay, risk of refusal, and risk of a need to appeal to the Planning Inspectorate. Next along in the spectrum may be an allocation with those same parameters but layered over with a masterplan and design code which - as above - may or may not form part of the adopted local plan, but in any event will give you more guidance on what is likely to be acceptable. But may themselves cause headaches which generate further cost and delay. Then at the other end of the spectrum, you may have an allocation bolstered by e.g. a local development order with a site or scheme specific masterplan. Which would maximise your certainty and, one would hope, the ease of delivery. But at the cost of flexibility. Some of you may’ve read last week’s post about varying planning permissions. What happens if your masterplan forms part of the adopted development plan and then - for whatever reason - things have to change? You can’t apply to vary a plan policy. Can you? So is it back to the drawing board with a fresh planning application? One which will face the newly steepened uphill struggle of being inconsistent with the local plan?

3. Converting it into a full consent: You thought reserved matters can get contentious now? Again - you ain’t seen nothing yet. In “Growth” areas, the reserved matters stage (whatever form it actually takes) will be the only thing which resembles a “development management” process for what will be by definition the most substantial and (normally) controversial schemes in the plan. Schemes which accord with the design codes are supposed to benefit from a “fast-track for beauty”. But beauty is the kind of thing reasonable professionals can disagree about (the eye of the beholder, and all that). And what happens if there’s disagreement? Cost. Delay. Uncertainty. Appeals. Yes you have your “automatic” planning permission. But there’s a huge amount of detail still to be filled in on how this regime is actually supposed to work, and even with a willing authority, there may be a lot more work to do to get you all the way to a consent you can actually build out. And that’s even before we start thinking about the DCO regime! 😬.

More to come on the other zones, sorry, areas in weeks to come. Stay safe and well, #planoraks. And the best of luck to any mini-planoraks heading off to school this September! Work hard, plan hard.