Written evidence submitted by Richard Harwood OBE QC [FPS 059]

I am a specialist Planning QC and Joint Head of Chambers at 39 Essex Chambers.  I was the Deputy Chair of the Advisory Panel on Standards for the Planning Inspectorate from 2007-2010 and a member of the Local Plans Expert Group set up by the Housing and Planning Minister in 2015. I am also the author of the standard suite of planning law textbooks (Historic Environment Law, Planning Enforcement, Planning Permission and Planning Policy (the latter co-authored with Victoria Hutton)) and a case editor of the Journal of Planning Law.

The views expressed in this note are entirely my own.

  1.                 Is the current planning system working as it should do? What changes might need to be made? Are the Government’s proposals the right approach?

The system is overcomplicated, primarily because of attempts to ‘fix’ it.  There are some 20 means of obtaining planning consent, most of which are unused.  There are a great number of adjustments which have been made.  Some of which are useful but even the useful ones tend to add complexity.

There is a lack of urgency, particularly in local plan making, but sometimes large planning applications are allowed to trundle on.  Those problems for applications are not simply to be laid at the door of local authorities, delays tend to be caused by applicants considering and making amendments to their schemes.

Rigorous timetabling has worked for Nationally Significant Infrastructure Projects under the Planning Act 2008.  The Local Plans Expert Group recommended timetables for local plan preparation and similar proposals are made by the White Paper.  Those should be supported.

There is an important role for planning law reform in simplifying and consolidating processes.  Process however only goes so far.  Planning is expected to address a huge range of issues.  If anything the White Paper widens those by the emphasis on design and beauty.

The White Paper contains some ideas which are good, some which are interesting but which are only sketched in general terms, and several bad ideas.  The White Paper’s proposal for a new local plan will not look much different to the current local plans and it is better to adjust the current system rather than to take a longer route of a new approach which gets back to the same position.  The proposals to use national development management policies, unless there is a reason for a local exception, and the scepticism about the usefulness of environmental reports in plan making are well-founded.

  1.                 In seeking to build 300,000 homes a year, is the greatest obstacle the planning system or the subsequent build-out of properties with permission?

The level of housebuilding generally reflects the state of the economy.  The collapse in development after 2008 was not due to the planning system but due to the financial crisis and its aftermath: the lack of finance for developers and purchasers and the insolvency of many of the small and medium sized builders.  The rising numbers before 2008 and from around 2014 have not had much to do with the planning system; the use of office to residential permitted development rights being the main exception.

  1.                 How can the planning system ensure that buildings are beautiful and fit for purpose?

Beauty is not in the eye of the beholder but is it also not explained by an algorithm.  It is a matter of judgment which has to be exercised in each case.  Design codes will help, but it is easy enough to produce a bad scheme which accords with a design code.  The design of places – placemaking – is also critical and sometimes harder than designing buildings themselves.

  1.                 What approach should be used to determine the housing need and requirement of a local authority?

As at present, requirements should be determined locally in the light of circumstances – including constraints – drawing on a standard method for working out need.  LPEG recommended the introduction of a standard methodology to determine need.  The new version needs work – greater numbers should be directed to more sustainable locations.  Turning the need figure into a requirement has to be done locally, within input from those interested, and assessed by an Inspector.  It is not a task which could realistically be carried out by the Ministry at a national level.

  1.                 What is the best approach to ensure public engagement in the planning system? What role should modern technology and data play in this?

Technology can come to the aid of public engagement.  Virtual planning committee meetings have had far more viewers than those who would have attended in person.  Some authorities do allow people to register for email notification of applications on particular streets.  That can be done on a ward basis or on a distance from particular premises.

A challenge is to involve people who are not looking out for planning applications, because those who are, are usually looking out for problems.  Notices on lampposts are very effective in informing residents who are not actively seeking out applications.  They will bring out potential supporters of new development.  Merging old and new techniques, QR codes can be put on those notices to allow the application details to be viewed instantly.

There is a question as to how effective local newspaper notices are.  Whether those should be continued depends on (a) evidence-based research and (b) a judgement about the effect on local newspaper finances of removing that advertising income.

6.              How can the planning system ensure adequate and reasonable protection for areas and buildings of environmental, historical, and architectural importance?

              The listing regime works reasonably well and the setting of listing buildings and the character and appearance of conservation areas are reasonably well protected.  The lacuna is for buildings of local interest – which are a priority of the Secretary of State.  Unless they are pubs, permitted development rights exist for the demolition of unlisted buildings which are not in conservation areas.  Stopping the demolition of a locally listed (that is, not statutorily listed) building is very difficult and may involve article 4 directions to withdraw permitted development rights, Environmental Impact Assessment in major clearance cases, stop listing or highly skilled lawyering.  Permitted development rights for demolition would need to be removed and such rights to build should be considered carefully in respect of alterations or setting impacts.

7.              What changes, if any, are needed to the green belt?

Despite occasional efforts by all concerned to make Green Belt complicated, it does still function as a clear policy.

8.              What progress has been made since the Committee’s 2018 report on capturing land value and how might the proposals improve outcomes? What further steps might also be needed?

Contributions from planning obligations and the community infrastructure levy have continued to increase since the report, reaching £7 billion in 2018/2019.[1]

The transparency of viability assessments has increased significantly.  Their publication in full, other than in exceptional circumstances, was supported by changes to the NPPF and Planning Practice Guidance in 2018.  Local authority practice had been highly variable, with some requiring full disclosure whilst others allowed viability appraisals to be redacted until they were useless.  In this year’s judgment in Holborn Studios[2] the High Court has rejected previous caselaw which allowed non-disclosure and insisted on the publication of viability material in the light of the new government policy.  It also emphasised the need for the material to be comprehensible.  This approach has been picked up and followed widely.

The issues debated before the Select Committee in 2018 about the land values used and whether they relied on an inflated market which assumed that policy on contributions would not be followed, has increasingly been resolved in favour of fixing a land value for a policy compliant scheme or an existing use value plus approach.

The transparency and value changes will serve to increase the level of contributions and to do so in a more publicly acceptable way.

              The proposed infrastructure levy is unusually a tax which is neither based on profit nor the ability of a scheme to pay it, nor does it relate to the infrastructure requirements of the particular project.  It would seem impractical to reconcile the diverse issues of urban redevelopments on sites with high existing use value and abnormal onsite costs for contamination or heritage; small, highly profitable greenfield housing sites; and new settlements or sustainable urban extensions with massive on and off-site infrastructure requirements.  In those examples the levy could render the urban schemes unviable, fail to get enough from the highly profitable schemes and fail to fund the infrastructure required for the new settlements/SUEs.

 

October 2020

 


[1] The Incidence, Value and Delivery of Planning Obligations and Community Infrastructure Levy in England in 2018-19

[2] R(Holborn Studios Ltd) v London Borough of Hackney [2020] EWHC 1509 (Admin).