Planning for the Future

Perhaps the most fundamental aspect is the shift towards a zoning-style system. This would require local planning authorities (LPAs) to identify land in their Local Plan as falling under one of three categories: Growth, Renewal or Protected:

• Growth areas suitable for substantial development. Outline approval for development would be automatically secured for forms and types of development specified in the Local Plan. In these areas, development would automatically receive outline planning permission for the principle of development (‘permission in principle’). New settlements, urban extensions, and former industrial/urban regeneration sites would be included in this category (areas of flood risk are specifically excluded). The proposals also mention growth clusters around universities.
• Renewal areas suitable for some development, such as ‘gentle densification’. This could include infill of residential areas, development in towns and small sites on the edge of villages which are not protected. There would be a statutory presumption in favour of development for the uses specified as being suitable in each area. There would be automatic consent for schemes which meet design and other prior approval requirements.
• Protected areas where development would be restricted, for example green belts and conservations areas, and where an application for express planning permission would still be required for new development.

For exceptionally large sites such as new towns, the Government also wants to explore a Development Consent Order under the Nationally Significant Infrastructure Projects regime.

In growth and renewal areas, the Local Plan would set out suitable development uses and limitations on height and/or density. In these areas it would still be possible for a proposal which is different to the plan to come forward (if, for example, local circumstances had changed suddenly, or an unanticipated opportunity arose), but this would require a specific planning application.

The White Paper also suggests a potential alternative approach of combining growth and renewal areas into one category, as well as a broader alternative of limiting automatic permission in principle to land identified for substantial development, with other areas of land determined by the local planning authority and subject to the existing development management process.

Our view on zoning

Under current arrangements, Local Plans already allocate sites for specific uses, in a not dissimilar way to the first two of the three proposed categories. However, the automatic granting of planning permission and ‘permission in principle’ under the proposed system may mean that the ability of local authorities to control development will be much more limited than currently.

Overall, this broad-brush approach to growth, renewal and protected areas makes sense. Uncertainty holds back businesses across sectors, and the development industry is no exception. Creating greater certainty as regards to what will constitute acceptable forms of development looks to be a positive step.

However, the shift away from a case-by-case to a rules-based approach, governed by nationally-set criteria, risks creating a more centralised system that is less accountable at a local level (something which only a few years ago the Government was very keen to move away from). Reducing the democratic process will be challenged if this is seen as a ‘gravy train’ for developers and landowners. Of course, this is an over-simplification as it is a relationship that also involves the consumer, where choice and value for money are as important as quality.

There is also a question mark over how flexible the new system will be in allowing alternative uses if the allocated use does not come forward. This could potentially stifle development, especially in scenarios where a developer wants to construct an unspecified use.

In cities such as London, Cambridge and Oxford large swathes of central urban areas fall within Conservation Areas and will therefore be more than likely fall within the protected category, meaning that new development will require an application for express planning permission, as is the case presently. Will a variety of sub-categories therefore be required in order to fit different area profiles?

We are also concerned that the proposal to grant outline planning permission automatically for sites through the plan-making process could be highly complicated. After all, this is where the parameters of the consent are set and where relevant site-specific conditional requirements and site-level (and time specific) planning obligations are established. Whilst theoretically possible to do at the plan making stage, it will require significant additional resource at local authority level. Alternatively, automatic granting of outline planning permission could get watered down to permission in principle being conveyed by plan allocation as per initiatives brought in by the 2016 Housing and Planning Act.

Big questions remain, such as; If a reformed reserved matters process for agreeing the issues which remain outstanding is to be introduced then how comprehensive will this be and will it, for example, include consideration of matters such as flood risk, drainage, ecology, noise, air quality, and contamination etc?

The suggested approach is not equivalent to zoning elsewhere in the world and does not mean the end for planning applications. Protected areas will still require a ‘normal’ planning applications and some form of reserved matters application will still be needed in growth and renewal areas where outline permission is assumed on allocated sites and if a developer wants to step outside of the allocation, an application could still be submitted.

Above all, however, it will really highlight the primacy of the Local Plan and make it the centre-stage of the process going forward.

Our view on the Green Belt

The proposals do not appear to suggest any changes to the current approach to Green Belt land, with the proposition to classify it within the protected areas, with no mention of a review, although this is equally not ruled out. If however the Government intends to make all Green Belt land sacrosanct, this could be a huge missed opportunity - after all, the UK is not blessed with a huge supply of brownfield land. Therefore, we think there is a case for greater flexibility to review Green Belt policy and make it easier for local authorities to make sustainable development choices, to release such land for growth and to allow the development of our urban centres in a more rounded way than is evident at present.

Indeed, it is unclear how housing needs are going to be met in areas with a strong economy and high affordable housing requirements without a release of land from the Green Belt, especially as Green Belt areas tend to be those where need is highest. There needs to be a commitment to review Green Belt boundaries in areas of higher need, especially if the duty to cooperate is being removed.

Many local authorities where growth has both a regional and national benefit have wrestled with the duty to cooperate and the ‘untouchable’ status afforded to Green Belt. This increases pressure on delivering high density sites on brownfield land. Surely it is time to consider a 2020 view to a 1940s policy?

The White Paper proposes that Local Plans should become shorter and simpler, focusing on local design guidance and clear rules regarding height and density etc. There will be a statutory obligation for LPAs to complete a Local Plan within 30 months, and to adhere to deadlines for various key stages of the process. Local Plans would also be significantly shorter in length, with a greater emphasis on visual material and the National Planning Policy Framework would become the primary source of policies for development management.

The White Paper also proposes the retention of Neighbourhood Plans, stating that they have “a crucial role in producing required design guides” but that the Government will “consider whether their content should become more focused”.

Our view on reforming Local Plans

The process for approving planning policy, using the Local Plans in their current form, is undoubtedly lengthy. We are now in a world where the speed of change is accelerating through technological advance, the increasing urgency of the sustainability agenda, as well as the immense social and economic change resulting from the COVID-19 pandemic. Therefore, we welcome the proposals to speed up the plan-making system.

The 30-month timetable feels ambitious but realistic, although it is not clear what sanctions there will be if a Council does not meet the timetable.

However, the idea that development management policies can be condensed to the degree being suggested does not feel so realistic. Whilst there is a lot of repetition between Local Plan policies and national advice, it is also the case that different urban areas face different economic, social and environmental challenges and bespoke local development plan policies are sometimes needed to tackle such challenges. Overall, however, the idea of adopting a more standardised approach for all LPAs could work and should assist shorter development plans and clarity over application requirements.

While a more responsive approach is welcome, planning policy needs to be made in a considered way that allows local communities to be consulted and to input their views. It is important that Local Plans continue to engage with local communities. Will the new Local Plans and the retention of neighbourhood plans be sufficient to ensure this?

It will also be more important than ever for developers to participate in Local Plan consultation. Failure to do so may prevent the development of land for a considerable period of time as significant emphasis will be placed on the uses set out within the growth areas.

The White Paper proposes a more streamlined, faster process for decision-making, with firm deadlines. It suggests achieving this through a combination of digitalisation, shorter and more standardised planning applications, data and documentation.

LPAs would have clear incentives to determine applications within statutory time limits. Failure to do so could involve refunding the planning fees, and even deeming some types of applications to have been granted planning permission if deadlines are missed.

Our view on faster decision-making

While the proposals seem to want to encourage local stakeholder participation at the plan making stage, they do suggest less of a role for such parties at the decision-making stage. The proposed process will place more power in the hands of planning officers and potentially increase the use of delegated powers, rather than planning committees. This is potentially a good thing, as a lot of time is wasted at the political level. Delegated decision making, especially where the principle of development has been established, is also welcomed.

Incentivising LPAs to push through decisions within statutory time periods, and offering automatic decisions, is welcomed where it is in the client’s favour. However, it would not be welcomed where it could force the hand of officers to make a decision when negotiations are ongoing beyond the statutory time period, thus ruling out making amendments during the assessment period. We hope, therefore, that extension of time agreements will remain possible under the new system

If determination timelines are to be fixed, we think that response times for consultees also need to be fixed with late comments rejected. Authorities and technical consultees will need additional resourcing to meet stricter timescales.

The summary-style planning statement is a good idea, but we have reservations about how this will work in practice and specifically how technical impacts will be assessed.

We welcome the move towards digitalisation, although significant investment in technology and training will be required across all planning sectors to enable this across the entire system. Widespread homeworking as a result of the COVID-19 pandemic has demonstrated just how much can be done online.

Proper resourcing of the local authorities will be key to achieving faster decision making, the White Paper signals an intent to do so and this is to be strongly supported.

The White Paper proposes that Local Plans are subject to a single, simple, statutory ‘sustainable development’ test, replacing the existing tests of soundness. This would mean the abolition of the sustainability appraisal system and the duty to cooperate test (a slimmed down assessment of deliverability would be retained) as part of the drive to reduce the timeframe to approve Local Plans.

The White Paper also suggests an alternative option of reforming rather than removing the tests of soundness, for example, by becoming less prescriptive about the need to demonstrate deliverability, and local authorities could be required to identify a stock of reserve sites.

Our view on duty to cooperate

The duty to cooperate is currently a legal requirement for all LPAs and County Councils in England (as well as a number of other public bodies) when preparing a Local Plan. It applies where development would have a significant impact across at least two planning areas, and requires relevant policies to be set out, as well as ongoing engagement between the relevant LPAs.

This is a bold move and we welcome its removal, as the current system is clearly not working. There has been much recent evidence of Local Plan failures on account of the failure to discharge its requirements (although most plans managed to pass it), resulting in a considerable waste of resources.

However, market areas do not stop conveniently at local authority boundaries, and there needs to be strategic thinking across markets. What is not clear is what might replace it, and how cross-boundary issues will be addressed in the future, including where unmet needs should be transferred to neighbouring areas.

Our view on sustainability appraisal

Abolishing the sustainability appraisal is also a rather bold move which could have adverse consequences on growth areas. Could it also lead to development locations being driven by political aspirations rather than sustainable objectives? Not everyone will embrace the idea that growth is needed.

Our view on reforming rather than removing the tests of soundness

The alternative suggestion that plans no longer need to demonstrate deliverability seems illogical – such a move would be likely to undermine the effectiveness of local plans. The need to demonstrate deliverability is now more rather than less important. Introducing reserve sites would have its benefits but would remove clarity and certainty. Local authorities should both test deliverability and have reserve sites.

The White Paper proposes a new ‘Infrastructure Levy’ to replace the current CIL developer contributions and Section 106 agreements, and to obviate the need to consider site viability.

The Government’s preferred option is to introduce a nationally-set flat-rate charge, applicable to all use classes. This could either be a single national rate, or area-specific rates. It would be charged on the final value of a development on occupation (or based on an assessment of the sales value where the development is not sold). The rate would be based on the value at the date of planning permission, but would be levied at the point of occupation.

There would be a minimum threshold below which the Levy would not be charged (and would only be charged on the proportion of the value that exceeded the threshold), to prevent low value development becoming unviable.

As a minimum, affordable housing provision supported through developer contributions would be maintained at current levels, with the stated ambition that current levels are exceeded.

Revenues would continue to be collected and spent locally, and local authorities would be allowed to borrow against Infrastructure Levy revenues to forward fund infrastructure delivery.

The new Levy will capture changes of use through permitted development rights, even if there is no increase in floorspace, meaning new housing created through conversion from commercial will now be included.

Stated benefits for the proposed Levy include:

• provide greater certainty over developer contributions
• increase revenue levels nationally
• better sensitivity to economic downturns
• reduced risk for developers
• reduce cashflow difficulties for SME developers

The White Paper also provides a number of alternative options where the Infrastructure Levy could be optional and would be set by individual local authorities. However, the White Paper does not anticipate strong take-up of this.

Our view on a new system for funding infrastructure and affordable housing

The current system is undoubtedly highly complex and lacks certainty. The White Paper rightly identifies its flaws, and the prospect of a simplified approach is welcome. However, the devil will be in the detail as the new system must be workable. If not, it could threaten viability, undermining its central ambition.

The hope is that this reform will enable us to sweep away months of negotiation of Section 106 agreements and the need to consider site viability. However, any new system cannot ignore local circumstances, and lengthy negotiations on S106 agreements could easily be replaced by equally lengthy negotiations on the final value of the development.

Equally, the sweeping away of S106 agreements seems potentially to be based on a misunderstanding of what these agreements serve to achieve. They are not just about securing financial contributions, but also, among other things, ensure that affordable housing is kept in perpetuity and secure site-specific elements of infrastructure including detailed triggers for delivery of such. On the surface it is difficult to see how a levy could replicate this.

The proposals risk a negative impact on affordable housing provision by driving up developer contributions, especially if this is a non-negotiable mechanism. The proposed raising of threshold to 40-50 dwellings, together with the proposed single payment contribution, could impact on quantum of affordable housing that is being delivered. LPAs already have problems spending their CIL, so are they really going to have the resources and organisational structure to facilitate mass affordable housing provision internally?

Whether or not the Government’s ambition to raise more revenue and capture a greater share of the uplift in land value than under the current system of developer contributions is achievable nationally, we should remember that the current system already threatens viability in a number of places which is impacting on land supply. Any changes must remedy rather than exasperate this problem. Detailed consultation across the property industry will be vital to ensure that a workable system is introduced.

We welcome the proposal to allow local authorities to borrow against revenues from the Levy to forward fund infrastructure delivery, as this can be a significant barrier to the delivery of sites. The White Paper confirms that revenues would be spent locally, which is an important aspect to ensure that local communities are not disadvantaged by development, and that there is a high level of transparency. We must ensure we build communities; not housing estates remote from the facilities to support them. Any system that facilitates public/private sector funding to kick start schemes will enhance both the speed of housing delivery and the facilities to support it.

The Government introduced the standard method in 2018, to meet objectively assessed need for housing across England and to ensure consistency. The intention was to shift the focus away from an increasingly complex ‘number-crunching’ exercise and focus on delivery and locational factors instead. However, following a range of criticisms, Government announced almost immediately that the method would be changing.

Those further changes are now enshrined in a parallel document to the 2020 White Paper, entitled ‘Changes to the Current System’. One particular criticism of the 2018 method has been that housing growth was being concentrated in the south and that the wider regions of England would lose out on much needed growth and investment.

The new method includes existing stock as well as new household formation in the modelling. It also adds weight to affordability and removes the cap included within the 2018 method. The requirement to demonstrate a five-year supply of land would also be removed, with sole reliance on the Housing Delivery Test proposed.

Our view on a new standard method

We broadly welcome the revised stock-based approach as a sense check to the 2018 based household projections that are not fit for purpose, and also the introduction of an additional uplift on affordability where the evidence shows this has been getting worse over the last 10 years. Indeed, we have already been using these methods at Local Plan Examinations to show the need for higher figures in the least affordable authorities (relating to the second affordability uplift).

Being mandatory, it will avoid lengthy discussions at examinations, provide clarity to all parties, and increase certainty over where, and how much, developers can build.

However, the introduction of a new standard method relatively soon after the long-awaited 2018 version will potentially give those LPAs where housing growth is unwelcome a reason for delays to Local Plan preparation and review, especially when the new method indicates a lower housing land requirement.

Despite seeming to move towards addressing the regional disparities inherent in the 2018 version, the draft 2020 standard method supports on-going concentration of growth in Greater London, where figures have risen significantly. However, this will not convert into targets because Government will be doing this centrally (for all LPAs), factoring in constraints and ability to deliver. The eventual figure will be below the 90,000 pa the standard method gets to, given that the New London Plan already takes a supply method to need and reaches about 45,000 pa. This and the discrepancies noted above may result in a further overhaul through the consultation process.

There are signs that the change may result in some re-balancing for the Midlands and areas of the north, where currently the standard methodology results in suppressed figures for these areas. However, the new methodology appears to be producing some unexpected outcomes and anomalies across different local authorities.

There will be a disproportionate impact on some LPAs, with targets rising in some (for example the least affordable urban areas) but reducing in others (for example those heavily constrained by national designations and small urban areas).

We have mixed views on the removal of the five-year housing land supply requirement. If plans are clearly deliverable and flexible enough then the Housing Delivery Test may be enough. However, if considerations of deliverability are not built into the Local Plan process then this may be unsuccessful.

We also welcome the removal of the cap. This was always an artificial intervention that prevented the UK properly addressing the housing crisis in the least affordable authorities.

Pillar two of the White Paper is about creating high quality, beautiful places that reflect local character, and ‘beauty’ will now feature prominently in planning policy, processes and decision making. The proposals are far-reaching and will impact growth and renewal areas as follows:

• The National Design Guide, the proposed National Model Design Code and revised Manual for Streets will all have a more prominent and direct bearing on the design of new communities
• Local communities should prepare design guides and codes wherever possible which should be subject to public input and consultation
• The Government will look at a new expert body which will help local authorities make effective use of guides and codes as well as promote improving resources in planning departments, including a chief officer for design and placemaking
• The Government will look at how Homes England can give greater emphasis to the design quality of its developments
• There will be a ‘fast track for beauty’ to allow a speedier approval process for new development which complies with a prescribed set of design codes
• For growth areas, the Government proposes to legislate that a masterplan and design code are agreed as a condition of the permission in principle granted through the Local Plan (with the masterplan and codes being in place prior to proposals coming forward)
• For renewal areas, the Government is proposing to allow as permitted development such designs which correspond to a prescribed ‘pattern book’. A pilot program will be developed to first test this proposal

Our view on planning for ‘beautiful’ places

Significantly, design matters will be more strongly linked to procedures and processes for gaining planning permission, principally by prescribing the need for a masterplan and design codes in growth areas. This is new and will require a step change in the planning system as well as available skills in local authorities. 

Other proposals are less radical, such as the creation of a new expert body to help local authorities up-skill and improve design quality (although we have been here before with CABE and the Design Council). The idea of a National Model Design Code is new and potentially far reaching, giving emphasis to the need to reach a clearer minimum standard of urban design for all new places.

The idea of a pattern book is not new to planning, however it has been a long time since a similar concept has been used for wholesale new development (early 20th century garden cities) and at the same time linked to permitted development rights. However, the preparation of design codes will inevitably add an additional tier of policy documentation to navigate and could delay development.

Overall, the proposed changes to reflect greater beauty in placemaking should be welcomed. They will hopefully help to lift the bar on future design quality further and we consider it a positive step to embed masterplans and codes at the heart of the process.

Local authorities will, however, need to adapt and up-skill so it remains to be seen how quickly and how well they adapt. Clear procedures and timelines (limits) will be needed to prepare masterplans and codes too. It is unlikely that local authorities will be able to prepare many masterplans, design guides or codes in-house, hence there will be an even stronger role for the private sector coming forward to develop such documents.

There are risks with how the ‘fast track for beauty’ will work in practice. The big question here must be how is beautiful determined – as we all know, it lies in the eye of the beholder!