Written evidence submitted by Friends of the Earth England, Wales and Northern Ireland [FPS 081]

Introduction

Friends of the Earth (FOE) is a leading not-for-profit environmental organisation concerned with the protection of the environment. We are the largest grassroots environmental campaigning community in the country, and one of the oldest and largest worldwide, with around 300 local and affiliated groups across England, Wales and Northern Ireland, and over 300,000 registered supporters. We have long advocated a participative, democratic and fair planning system that delivers sustainable development and safeguards the public interest.

Friends of the Earth has an established record of working with and alongside communities. This includes taking part in public inquiries; presenting at planning committees; submitting responses to development plan consultations; making representations at examinations in public; providing guidance and training to our network of volunteers and local groups; and, on occasion, successfully challenging unlawful planning decisions. The organisation has therefore unique insight into the practical application of national planning policy, legislation and procedure and the nature of local planning concerns raised by communities and volunteers who engage with planning on the ground.

Summary

In summary, we submit the following:

 

Below we set out our answers to the Committee's questions.

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?

1.1 Our planning system is far from perfect and could certainly be improved, but the issues are a direct consequence of successive deregulatory planning reforms, which have served to erode and undermine the plan-led system, together with a system which fails to give sufficient weight to addressing the ecological and climate crises.

1.2 None of the reasons identified by Lewis Silkin in his presentation of the need for the 1947 Town and Country Planning Act have changed. We still need to address public health and we need even more to address the environmental crisis – matters of overwhelming public interest. Power over development is increasingly being centralised and privatised in England, and the local planning system remains a vital check and balance with public interest at its heart.  We need to look to strengthen the current system, sorting out betterment and getting to grips with the climate emergency. This requires scrapping permitted development rights, addressing anomalies such as landbanking through land value taxes,[1] and legislating to empower communities and councils to require healthy, zero carbon development; deliver genuinely affordable homes to those in greatest need; and afford strong protection to local green space and the natural environment.

1.3 Permitted Development Rights (PDR) allow development to side-step local planning policy[2] and proceed without proper consideration of the consequences for occupants, the wider environment and broader societal objectives.  The shortcomings of Permitted Development are well documented.[3] PDR changes have made a “gift” of public rights to private interests at great cost,[i] and should be reversed.

1.4 As others have noted,[4] Government needs to give stronger direction on certain matters, such as requiring new development to be zero carbon, empowering local authorities to lead on climate change mitigation[5] and enforcing the climate change legal duty.[6]  Climate considerations should factor in key stages of planning and development otherwise it is unlikely the UK will meet the target of becoming net zero by 2050.[ii] To that end, Friends of the Earth believes it should be made a requirement to consider climate impact in planning decisions (section 70, TCPA 1990), as it is for plans (section 19, PCPA 2004). Sustainable development should be defined in legislation. Building Regulations must be tightened to zero carbon, a target that should have been achieved in 2016. We would like to see a strengthening of policy, procedure and regulation to ensure that decisions require strict adherence to the mitigation hierarchy (this gives priority to avoiding harm to nature in the first place) not a reliance on net gain for biodiversity.

1.5 We suggest that a limited third party right of appeal to rebalance the planning system to make it more equitable for communities should be considered.

1.6 Greater clarity on expectations, in other words more watertight requirements, that affordable housing must be provided would make it more likely that the cost is fully factored in the price developers pay for land and make it harder for developers to avoid contributing affordable housing on so-called viability grounds.

1.7 In our view, the Government is taking completely the wrong approach with its latest set of proposals (Planning White Paper, Changes to the Current Planning System) consultation and changes which widen the scope of Permitted Development Rights, changes of use and introduce zoning. Zoning in the way the Government suggests will not work because it does not draw on evidence of where it does work such as in the Netherlands.[7] In common with others, we share the view that these proposals have not been properly thought through and are not justified by the evidence.[8] Councils,[9] environment,[10] social justice[11] and housing charities[12], trade associations[13] and academics[14] have all expressed concern on the proposals.

1.9 The proposed reforms would cause irrevocable harm to our local democracy, curtail public rights to participate in plans and decisions, communities, and environment, but by the lack of evidence put forward to justify them.[15]  And while local design codes and tree lined streets are welcome initiatives, the harm we fear would result from adopting the government's wider reform agenda would overwhelmingly outweigh benefits from these.

1.10 In regard to the White Paper proposals to replace our discretionary planning system with a zoning system, categorising areas for growth, renewal and protection and associated changes, our concerns include:

Loss of the ability of councils and communities to have a say over whether development proposals should go ahead or not: this will result from the White Paper proposals that automatic permission or permission in principle will apply in areas of growth and renewal.  There will be no need for proponents of schemes which comply with the Local Plan to make an outline planning application. Detailed matters would be delegated to a planning officer to sign off.  These arrangements will in our view lead to a less democratic, transparent and participatory planning system.  The quality of outcomes could also suffer as a result of the loss of democratic oversight and public scrutiny of development proposals.

Loss of the right to be heard in local plan examinations: the White Paper suggests that objectors right to take part in examinations might be fulfilled in other ways, such as by having a telephone conversation. We don't consider this approach to be robust. The ability to participate in person in examinations provides for meaningful participation and better plans and policies as a result of the evidence and discussion that is brought to bear in relation to policies and plans that are being examined. The deliberation and discussion that occurs at EiPs helps foster consensus and understanding among diverse parties and ultimately leads to better thought out plans and policies. Maintaining a right to be heard in person is essential if communities and the wider public are to retain a right to meaningfully participate in plan-making. It fundamental to public trust in the system.

Weakening of environmental protections: while no detail is given, the White Paper indicates the government's intention to streamline procedures such as Environmental Impact Assessment (EIA) and Strategic Environmental Assessment (SEA)/Sustainability Appraisal (SA) and replace the Local Plan soundness tests with a sustainability test. We are concerned that attempts to simplify and speed up the system will lead to less robust assessments. EIA and SEA are well established, internationally recognised (not just in Europe) tools which help secure better plans and decisions. While we believe a statutory sustainable development test, depending on what this entails, could play a helpful role,  this would not in our view negate the need for a Strategic Environmental Assessment (SEA) of plans (or similar procedure). SEA/SA performs a crucial role, guiding the preparation of plans and policies and consideration of alternatives and providing evidence to inform both consultation responses and the examination process. With regard to the suggestion that Sustainability Appraisals be replaced by a simplified process for assessing the environmental impact of plans (paragraph 2.19 of the White Paper), we suggest that this would be a ‘race to the bottom’ in terms of environmental assessment. 

Simplified local plans: The White paper proposes local plans should be simplified and reduced in scope.  Development management policy would be set nationally. We consider this approach to be misconceived. To deliver new homes and other development while meeting broader objectives, such as for resilient communities,  the UK net zero carbon 2050 target and protection of green space, wildlife and the natural environment, in our view calls for Local Plan policies that are sufficiently detailed and tailored to local circumstances, challenges and opportunities. Without sufficient detail the planning system will fail to provide the certainty needed to guide development and assure good planning outcomes.

Proposals to make decision making faster, namely the suggestion that "some types of applications should be deemed to have been granted planning permission if there has not been a timely determination and that an automatic rebate of fees be given where applicants are successful at appeal and."  Both proposals are concerning. Delay is sometimes unavoidable, and not necessarily the fault of the planning authority.  Moreover, it is unreasonable to expect communities to live with the consequences of bad development due to an inflexible administrative process that contains no provision for extending deadlines, where circumstances warrant, ie justify, this. Granting appellants an automatic rebate of their planning application fee if they are successful at appeal, as the White Paper proposes, will deter cash-strapped local authorities from refusing to grant permission for an application they consider to be poor and consequently could allow damaging development to go ahead. Reaching a planning decision is not always black and white as it depends on the weight to be given to different factors. Such a rebate should only be required, in our view, where a council's planning decision is deemed unreasonable by an Inspector on material planning grounds.

Placing land into three categories - growth, renewal or protection - and applying an automatic permission or permission in principle to growth and renewal areas: The suggested approach in our view is simplistic and crude and no basis for a robust planning system let alone a green and fair recovery.  Zoning is not necessarily faster, as academic Dr Philip Booth observes "in France, which has a zoning system, research has shown processing is not necessarily faster."[16]  Academics rightly describe the proposals as lacking "the sophistication of more developed zoning systems" such as in Victoria (Australia), noting that  "an as-of-right planning system based around just three zones seems highly reductive and unable to tackle the complexities of planning for real places."[17]

The White Paper indicates the government's intention to legislate to further widen and change the nature of permitted development (para 3.19).  The poor outcomes of permitted development are well documented, with homes in unsuitable locations which fail to meet basic standards,[18] contribute affordable housing[19] or community infrastructure, or be in line with the Local Plan.  As the Building  Better, Building Beautiful Commission observe "In some instances, we have inadvertently permissioned future slums."[20]  

Despite shortcomings identified in the government's own commissioned research,[21] and against the advice of its author,[22] around the same time the research was published, 21 July, government announced new rules to allow developers, without planning permission, to demolish vacant office and industrial premises and rebuild them as homes;[23] allow upward extension by up to two storeys of existing post-war-built homes,[24] create new homes above existing terraces, offices and shops;[25] and through the creation of a new broad “commercial, business and service” use class allow change of use between high-street uses – such as shops, restaurants, cafes, professional services premises and offices.

Paragraph 1.19  of the Planning White Paper states that the government will "look to extend the scope of the consolidated Infrastructure Levy and remove exemptions from it to capture changes of use through permitted development."  In Friends of the Earth's view, this is essential, as are recent guidelines requiring new homes delivered through PD to have adequate light.  However, attempting to address the deficiencies of permitted development in this piecemeal way is insufficient to ensure good quality, well planned development (space standards, energy efficient, access to green space, sustainable location, land uses which foster resilient communities, health and well being). Friends of the Earth, along with others,[26] remains concerned by the impact that permitted development will continue to have on quality of life and well-being and our ability to plan for sustainable, resilient places. 

2. 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?

2.1 Planning is not a barrier to housebuilding.  According to research by the Local Government Association councils approve 9 in 10 applications and more than a million homes granted planning permission in the past decade have not yet been built.[27] Slow build-out of schemes is an issue, as the Letwin Review identified, but that is down to the developer and their market model, rather than the planning authorities. Measures are needed to address landbanking. More attention should be turned to the building of social housing rather than deregulating the planning system further.

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

3.1 A prerequisite for these is setting high standards for new builds and conversions; local plans tailored to and able to respond flexibly to local circumstances; well-evidenced and justified policies; thorough, democratic scrutiny of plans and proposals; and public participation in plan-making and decision taking. 

3.2 We would add that environmental sustainability is an important consideration in development being fit for purpose (development being more than just about buildings, but extending to the curtilage and importantly, the space between buildings, impact on the surrounding area and wider environment). Planning is fundamentally about placemaking. This in turn requires consideration to be given to the implications a development has for a particular place or community, both now and in the future.  This calls for a planning system which gives stronger weight to climate and ecological considerations than it does at present (for example, through higher standards set nationally with flexibility for planning authorities to raise the bar further) and takes into account the capacity of places to sustainably accommodate development. This approach would help ensure development is resilient and fit for purpose.

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

4.1 In our view, consideration of housing need must be informed by local communities and councils' insight into their needs. Needs are different to the ‘market’, and there is a limit to how much the market will provide in terms of affordability. Friends of the Earth believes a distinction should be made between 'need' and 'demand' with priority given to catering for those in greatest need, that is those on lowest incomes and meeting the needs of household types/groups currently poorly catered for in the housing market. Essentially, we need a major investment in social housing funded by Government and delivered by local authorities and local partners.

4.2 The approach set out in the MHCLG consultation paper 'Changes to the current planning system' [28] to assessing local housing needs we consider fundamentally flawed. The proposed formula will foist unsustainable levels of development and growth in some places, and neglect others, making it even harder than it is at present to plan and deliver development in sustainable locations served by public transport, walking and cycling; rebalance economies (geographically); and minimise environmental impact. It is not a problem of permissions, as the LGA has pointed out, there are plenty of permissions.[29]

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

5.1 The best approach to public engagement in the planning system is to adopt a variety of methods.  A one-size fits all approach is not the answer. Greater use of digital technologies is needed, however face to face communication, in person events and access to hard copy documentation also matter if participation is to be inclusive and reach those with limited or no access to the internet.  In person events provide for  a level of engagement and in-depth discussion that cannot be replicated through digital technologies. As a consequence everyone involved, both in running and taking part in these exercises, stand to be better informed about the planning issues concerned. Both types of communication are needed. In terms of the Equality Act, public participation must consider how to engage hard to reach groups and vulnerable groups. These groups are likely to be most excluded if there is no targeted support to help them have their say.

5.2 For plans and decisions to be robust they need to be informed by evidence. This requires up to date, reliable evidence to be available and, crucially, in a form both the professional and layperson can easily access and digest.  More use of maps and GIS and combining Government held datasets would be very useful in addressing the complex challenges that plan-making has to engage with.  While centralised digital databases may have a role to play, there will continue to be the need for locally specific data, including evidence gathered through up to date site surveys to inform plans and decisions and most importantly local knowledge. Communities have granular knowledge about what happens locally that no local authority or government department has access to – this is only garnered through consultation processes at the moment.

5.3 There is no benefit to automating any part of the analysis or decision-making part of the local plan process. We would be concerned were automated procedures to lead to schemes being approved without the scrutiny they warrant or conversely, miss opportunities for sustainable development from say a community led scheme whose proponents may be unfamiliar with the correct procedures.  Automatic screening is no substitute for human judgment for many planning matters which require careful consideration and appraisal prior to a decision being reached on whether a development proposal can go ahead or not.

5.4 Digitally automated planning processes with tick-boxes will fall short of assessing the context that is essential to understand the detail of how a project impacts people’s lives and the places they live.

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

6.1 There is a need for the planning system to give greater weight to the natural environment in plans and decisions. All too often nature is seen as an afterthought, something to consider once everything else is dealt with, rather than an integral, non-negotiable part of the planning and development processBy non-negotiable we mean not to be traded off.  We believe all communities should have access to nature and greenspace on their doorstep, or at the very least close by, and that the planning system must provide for these, along with robust protection for habitats and species in line with domestic and international commitments. Wildlife and nature is not limited to protected spaces – we live in nature.

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

7.1 Our planning system should afford strong protection to Green Belt, in recognition of the multiple benefits which it provides. Many places would long have lost their sense of ‘place’ identity without it, and many places have lost their sense of place identity as it has not been used where it could have been appropriate, also to secure access to nature for communities. Facilitating improved public access to green belt measures to enhance to support wildlife, food growing, tree planting and where appropriate creating new green belts or extending the area covered by Green Belt, are ways in which the planning system should be changed to better deliver these.

 

October 2020

 


[1] The Mirrlees Review: Reforming the Tax System for the 21st Century https://www.ifs.org.uk/publications/mirrleesreview

[2] As set out in the Local Plan, and where applicable, Neighbourhood Plan or Spatial Development Strategy.

[3] B Clifford, P Canelas, J Ferm, N Livingstone, A Lord and R Dunning: Research into the Quality Standard of Homes Delivered through Change of Use Permitted Development Rights. University College London/University of Liverpool, for Ministry of Housing, Communities and Local Government, Jul. 2020. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/902220/Research_report_quality_PDR_homes.pdf

[4] https://www.rtpi.org.uk/news/resource-planners-for-climate-change/about-the-campaign/

[5] Green recovery: local authorities have indispensable role, Friends of the Earth, July 2020 https://friendsoftheearth.uk/climate-change/green-recovery-local-authorities-have-indispensable-role

[6] The Centre for Sustainable Energy note  "while the Climate Change Act legally commits us to net zero emissions by 2050, this will be achieved only if we plan for it."

[7] https://business.gov.nl/regulation/zoning-plan/

[8] TCPA, 2020, Academic Report: Wrong Answers to the Wrong Questions: Countering the misconceptions driving the Government’s planning reform agenda

[9] https://www.local.gov.uk/parliament/briefings-and-responses/debate-planning-reform-and-housebuilding-targets-house-commons-8

[10] CPRE press release 6 August 2020  https://www.cpre.org.uk/news/major-planning-reforms-criticism/, Friends of the Earth press release 6 August, https://friendsoftheearth.uk/climate-change/planning-reforms-are-bad-news-communities-and-environment

[11] Sumofus petition, https://actions.sumofus.org/a/stop-cummings-stripping-away-our-rights

[12] Shelter press release, 6 August https://england.shelter.org.uk/media/press_releases/articles/shelter_responds_to_new_planning_reforms/shelter_responds_to_major_new_planning_reforms

[13] Victoria Hills, RTPI Chief Executive, Open letter 2 July 2020, https://www.rtpi.org.uk/media/5720/open-letter-plantheworldweneed.pdf, Press releases RIBA 3 & 6 August, https://www.architecture.com/knowledge-and-resources/knowledge-landing-page/deregulation-wont-solve-the-housing-crisis-riba-criticises-jenricks-planning-reforms, https://www.architecture.com/knowledge-and-resources/knowledge-landing-page/riba-responds-to-governments-latest-planning-reforms

[14] TCPA, 2020, report by academics, Wrong Answers to the Wrong Questions: Countering the misconceptions driving the Government’s planning reform agenda report by academics

[15] TCPA (2020) report by academics Wrong Answers to the Wrong Questions: Countering the misconceptions driving the Government’s planning reform agenda, and TCPA Blog.

[16] Philip Booth (2020), TCPA, Will zoning offer more flexibility, speed and 29 efficiency than the discretionary system? Wrong Answers to the Wrong Questions: Countering the misconceptions driving the Government’s planning reform agenda, citing research (Booth, P. (1989) ‘How effective is zoning in the control of development?’, Environment and Planning B, 16, pp.401-4).

[17] Planning for the Future White Paper: Consultation response from academics, Bartlett School of Planning, UCL https://www.ucl.ac.uk/bartlett/planning/news/2020/oct/bartlett-school-planning-academics-respond-governments-white-paper-consultation

[18] RICS (2018) Assessing the impacts of extending permitted development rights to office-to-residential change of use in England

[19] https://www.local.gov.uk/lga-over-13500-affordable-homes-lost-through-office-conversions

[20] Building Better Building Beautiful Commission (2020) Living with Beauty

[21] Ben Clifford, Patricia Canelas, Jessica Ferm and Nicola Livingstone, Bartlett School of Planning, UCL, University of Liverpool, MHCLG (July 2020) Research into the quality standard of homes delivered through change of use permitted development rights

[22] BBC News – 04/08/2020 Ministers ignored 'slums of the future' warnings, says adviser

[23] https://www.legislation.gov.uk/uksi/2020/756/contents/made

[24] https://www.legislation.gov.uk/uksi/2020/755/article/1/made

[25] See previous footnote.

[26] RTPI letter to the Secretary of State Robert Jenrick (July 2020) https://www.rtpi.org.uk/media/5866/21072020-final-joint-institutes-pdrs-letter.pdf

[27] https://www.local.gov.uk/housing-backlog-more-million-homes-planning-permission-not-yet-built

[28] MHCLG, 6 August, 2020

[29] As before: https://www.local.gov.uk/housing-backlog-more-million-homes-planning-permission-not-yet-built


[i] https://www.leaseholdknowledge.com/mps-fail-to-stop-robert-jenricks-multi-billion-pound-planning-hand-out-to-offshore-freeholders/

[ii] https://www.adeptnet.org.uk/documents/blueprint-accelerating-climate-action-and-green-recovery-local-level