I looked long and hard in the government’s Planning For The Future White Paper for recognition that London is, well, different – in its opportunities, challenges, complexity, scale and administration. The following brief descriptions of the proposals are no substitute for reading the document itself, but they try to understand how the proposals might work in the capital.
Plan-making
There will be cut-down local plans, focused on designating land into three categories: growth (sites suitable for substantial development, which will have the equivalent of outline planning permission); renewal (sites suitable for development with an enhanced presumption in favour of it for the purposes identified in the plan); and protection (areas with environmental or heritage constraints where the existing planning system will continue to apply).
Authorities will be told by government how many homes they need to plan for, applying a new standard methodology to divide up a national annual target of 300,000 homes, but with the government tweaking the arithmetic outputs to take into account such factors as its assessment of the extent of local constraints and the need for land for non-residential development.
There is no indication of a process for push back on those figures. What of the role of the London Mayor? The document says: “It may be appropriate for Mayors of combined authorities (such as Andy Burnham in Greater Manchester) to oversee the strategic distribution of the requirement in a way that alters the distribution of numbers, and this would be allowed for.” Presumably, by extension, the London Mayor would also have this role. But how, in what will be a stream-lined plan preparation process, designed to take no longer than 30 months? Indeed the document envisages new plans being in place, following the necessary legislation to kick off the process, by the May 2024 general election.
Development management policies will be stripped out of local plans and dealt with in the National Planning Policy Framework (NPPF). How does that sit with the London Plan and, indeed, the specific characteristics of London’s neighbourhoods? To what extent would, say, Westminster City Council or the Corporation of London be able to add locally to those policies?
Perhaps part of the answer is the enhanced role for design codes, with a national design code expected this autumn and then local design codes and guides to be prepared locally with community involvement and all these documents to have decision making weight. Neighbourhood planning will also be retained. But how is this to be choreographed with potentially significant requirements for development? How will expectations be managed?
The soundness test, sustainability appraisal and the duty to co-operate will be replaced by a “sustainable development” test.
The document emphasises that better consultation will take place, with plans being visual and map-based and greater use of digital technology. But:
- Who will set the minimum housing numbers (and other development requirements) for London, and for its individual boroughs?
- What role will there be for the Mayor?
- How rigorous will the “sustainable development” test be?
- How are the London boroughs going to be able to accelerate decision making on sites within their areas identified for substantial development, such that their plan can amount to outline planning permission? And how can they specify acceptable parameters and requirements for development within the light-touch process envisaged?
Development management
Outline planning permission via the plan in growth areas can be made to work. After all, it is just an expansion of the current “permission in principle” process. But in London in particular:
- The nature of constraints is such that outline, as opposed to full, planning permission is often impractical.
- Will the “outline” be so “outline” as to make reserved matters approval the key “bankable” event, meaning no real change occurs?
- What of those complex Section 106 agreements with their commitments in relation to mitigation measures?
- Can it be done within the 30 months’ deadline?
- How will environmental assessment requirements be accommodated, whilst noting that they will be simplified?
- Developers will still need to be able to bring forward schemes that are outside the parameters set by the plan. How will such proposals be assessed?
An enhanced Section 38(6) presumption within renewal areas also can be made to work. However:
- What role will the Mayor have?
- How will local design codes and guides be balanced against plans and national guidance?
- Surely, parameters for acceptable development – in other words, local development management policies – will be required for that presumption to work, in which case how will these plans be kept simple and fast?
The onwards march of permitted development rights will continue, with potential use of “pattern books” for different building types.
Restricted area status will surely be the objective for most communities. How will boroughs seeking to bring most of their areas within this category be avoided, if that is what the local electorate is pressing for?
Paying for infrastructure
The white paper says the Community Infrastructure Levy (CIL) and the current Section 106 planning obligations system are to be replaced by a nationally set charge, which will be a fixed proportion of the scheme’s development value. The levy would fund affordable housing, but with an on-site delivery requirement where appropriate. Mayoral CIL “could” be retained.
This is one of the less clear parts of the paper, with a “have cake and eat it” flavour. The process for CIL rate-setting will be critical, given existing tensions over scheme viability in London. The mechanisms for paying for and providing affordable housing and ensuring that we have the necessary tenures, delivered to the right quality and in the right places, will be critical too. What is the way to regulate much of this between borough and developer without a Section 106 agreement?
In conclusion
The white paper proposals could potentially work, with refinement, although the end result is undoubtedly not going to be as streamlined and fast as the prototype. The consultation period runs until 29 October 2020. To make the best of the government’s firm commitment to change, we really need to make sure that the eventual process and its checks and balances work for London (and nationally). This means that some consensus in London about how the proposals can be sensibly be refined would be helpful. The Prime Minister’s foreword talks of giving “the people of this country the homes we need at prices we can afford, so that all of us are free to live where we can connect our talents with opportunity”. Let’s hold him to that.
Simon Ricketts is a partner of Town Legal LLP. These are his personal views. For more from Simon on the government’s proposals, visit his blog Simonicity. You can also follow him on Twitter.
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