Out-Law Analysis | 11 Aug 2020 | 11:35 am | 8 min. read
The proposals promise to cut bureaucracy and speed up the delivery of projects, but further thought is needed to refine the plans before draft legislation is published by the UK government.
This is part of a series by Pinsent Masons exploring the practical implications of the government's planning reform proposals for England, as set out in its 'Planning for the Future' white paper. One of the aims of these proposals is to create a new system "that actively encourages sustainable, beautiful, safe and useful development". Other articles in the series will address topics including the costs of bringing development forward, issues of development and time, engagement and digital, and the delivery of large developments. Registration is now open for a series of webinars Pinsent Masons is hosting this September on planning reform, which focus on what the changes will mean for the timely delivery of new housing, commercial and retail development, the implications for planning across energy and infrastructure, and the relationship between the reforms and the wider decarbonisation and environmental agenda.
With its white paper, the government has recognised that assessments of environmental impacts can add complexity and bureaucracy to the planning process and do not always necessarily lead to environmental improvements. It claims there are currently insufficient incentives within the existing planning process to bring forward proposals that are beautiful and which will enhance the environment, health, and character of local areas. Local plans do not provide enough certainty around the approved forms of development and, it said, "quality can be negotiated away too readily".
Under the government's proposals, local plans would be subject to a single statutory "sustainable development" test, replacing the existing tests of soundness and abolishing the existing duty to cooperate. A slimmed down assessment of the deliverability of the plan would be incorporated into the "sustainable development test".
The sustainability appraisal system would be abolished and replaced with a simplified process for assessing the environmental impact of plans, the government said, "which would continue to satisfy the requirements of UK and international law and treaties". Streamlining of the system is likely to be welcomed by developers and is a positive step. However, this approach appears to remove the need to conduct a formal strategic environmental assessment of the local plan as required under EU law.
A strategic environmental assessment is designed to support decision-making by identifying, characterising and evaluating the likely significant effect of the plan on the environment and determining how adverse effects may be mitigated or where beneficial effects may be enhanced. There is no detail as to how the simplified process will continue to provide this same level of protection. This is a concern, given the proposals in the white paper for an area-based planning system that would grant automatic outline planning permissions in some cases.
With the potential for less scrutiny on impacts at the development stage under these proposals, the strategic assessment of a local plan will be even more important to make sure there is proper regard as to whether the plan is likely to have significant effects on the environment and people and if so how these are mitigated and enhanced.
Greater certainty is required on how impacts will be assessed, mitigation is proposed and how the environment will continue to be protected and enhanced. Speed cannot be at the expense of unforeseen adverse impacts and the environment
Under the local plan reforms, an outline planning permission for the principle of development would be conferred by the adoption of the local plan for land that is identified as "growth areas (suitable for development)". In short, this would mean there would be no need to submit a further planning application to test whether the site can be approved in principle. To obtain full planning permission, further details would need to be agreed on the issues which remain outstanding, such as by way of a reformed reserved matters process.
By skipping out the outline permission stage, however, it is unclear how the environmental impacts will be screened, scoped and assessed for a particular scheme coming forward in a 'growth' area, particularly against the backdrop of sustainability appraisals being abolished during the making of local plans. If an environmental impact assessment (EIA) is not carried out at the outline stage, as would appear to be the case, it is unclear whether that means a developer would have to produce the full EIA at the "reformed" reserved matters stage.
Whilst developers will undoubtedly welcome a more streamlined and efficient planning approval process in 'growth' areas that are suitable for substantial development, greater certainty is required on how impacts will be assessed, mitigation is proposed and how the environment will continue to be protected and enhanced. Speed cannot be at the expense of unforeseen adverse impacts and the environment.
Dividing all land into areas – in addition to the 'growth' area, there will be 'renewal' areas and 'protected' areas – implies that impacts can be neatly contained in their respective areas. Nature, and the wider environment are cross-boundary matters and do not sit neatly within such a rigid approach. For example, it is not clear how wildlife will be protected when it is located outside 'protected' areas and/or migrates across spatial areas and how this will be compatible with and deliver the Environment Bill's proposals on net gain and improvement plans.
The proposals seek to ensure the planning system supports efforts to combat climate change and maximise environmental benefits and requires, for example, all new streets to be tree-lined and ambitious improvements in the energy efficiency standards for buildings. Although all positive and essential commitments to help deliver the government's commitment on achieving net-zero carbon emissions by 2050, the white paper is lacking in the detail as to how existing climate change mitigation and energy efficiency requirements will be built upon in practice.
In terms of design, the 'national design guide' (NDG) was published in October 2019. This autumn the government will publish a national model design code to supplement the NDG, setting out more detailed parameters for development in different types of location together with a revised 'manual for streets'. This "design" guidance will have a direct bearing on the design of new communities. In addition, the white paper stresses the importance of preparing local design guides and codes.
We welcome the introduction of national design codes that will have real teeth and weight in the planning process and recommend consideration is given to publishing a ministerial policy statement alongside the national design guidance to bolster its application. It is critical that local communities positively engage in the preparation of local design codes to make sure developments truly reflect local character, preferences and environmental sensitivities, whilst allowing for and encouraging innovation.
The proposals will require a step-change in the design skills available to many local planning authorities. A new expert body will be set up to support the delivery of "provably locally-popular design codes" and to perform a wider monitoring and challenge role in building better places. Each authority will need to appoint a chief officer for "design and place-making". It is not clear whether this expert body will be an arms-length body or whether, for example, this role will be carried out by Homes England. Importantly, the government has committed to bringing forward proposals later this year for improving the resourcing of planning departments more broadly. It will be vital for local planning authorities to have access to greater funding and staffing resources to make the proposed wholescale reform of the planning framework a success, particularly given the extensive local government reforms that are on their way.
A "fast-track for beauty" will grant automatic permits for "proposals for high-quality developments where they reflect local character and preferences" and create a "net gain" and not just "no net harm".
Continuing on from the recommendations of the Building Better, Building Beautiful Commission, developments that comply with local design codes would be guaranteed faster planning permission. 'Pattern books' in the form of style guides for "popular and replicable designs" could be used for permitted developments and schemes in land designated for renewal.
What is not clear, however, is how robust environmental assessment will be applied to such "fast-tracked" developments. Issues to be resolved include whether the scope of the national and local design codes will really address local and site-specific environmental considerations, and how the environmental protections provided by the current EIA process will be retained in the new "fast track" process. It also remains to be seen what safeguards will be put in place to ensure beautiful buildings are truly at the heart of creating healthy sustainable communities.
Again, the detail is lacking and much more consideration will be required as to the use of national and local design codes alongside environmental assessment requirements to ensure developments are beautiful, sustainable and limit adverse impacts on the environment to the extent possible.
A new system of environmental assessments has also been proposed to ensure requirements for environmental assessment and mitigation are made simpler to understand and are "consolidated in one place so far as possible, so that the same impacts and opportunities do not need to be considered twice".
There is a lack of detail in the white paper as to what this will mean in practice. It is unclear, for instance, whether it is the government's intention to merge the different legal environmental assessment requirements from the Environmental Impact Assessment Regulations, the Habitats Regulations and the Water Framework Directive among others into one, and whether a strategic environmental assessment will continue to be required.
A separate consultation is scheduled this autumn to seek input on how the new system will take opportunities for environment improvements whilst also ensuring the UK meets its domestic and international obligations, from which further proposals for change may emerge.
We agree that the current environmental assessment frameworks, including strategic environmental assessment, sustainability appraisal and EIA can often lead to duplication in effort and very long reports which create delays and lack transparency. It is also true that greater efficiencies and streamlining of the existing environmental assessment frameworks is required, for example, by aligning assessment against a unified set of "legal tests" and the use of a combined baseline methodology, big data and digital platforms. However, it will be important that simplification does not turn into dilution of the environmental protection afforded by the existing legal framework.
The "fast track for beauty" and new environmental assessment proposals need to be fully integrated with the policies set out in the government's 25 year environment plan, published in January 2018, and with the proposals set out in the Environment Bill published in January 2020, including the detail as to how net gain will be embedded into the planning system via a system of "biodiversity credits". The government's recent biodiversity strategy will also need to be fully factored into the planning reform proposals to ensure a truly joined up approach to sustainability and environmental protection and enhancement.
The proposals in the white paper are far reaching and the ambitions and objectives for a streamlined and up-to-date world class planning system are to be applauded. However, the proposals raise some very serious and fundamental questions which require further thinking through. It is incumbent on the industry to highlight that if the government creates a rigid "planning zone approach" then this must not be at the expense of the rich pattern, character and diversity of place and existing levels of environmental protection and enhancement.
Co-written by Richard Griffiths, Jan Bessell and Eluned Watson, all specialists in planning law at Pinsent Masons, the law firm behind Out-Law. Registration is now open for a series of webinars Pinsent Masons is hosting this September on planning reform, which focus on what the changes will mean for the timely delivery of new housing, commercial and retail development, the implications for planning across energy and infrastructure, and the relationship between the reforms and the wider decarbonisation and environmental agenda.
06 Aug 2020