Out-Law Analysis | 13 Aug 2020 | 11:12 am | 7 min. read
The new system proposes both 'front loading' local plans with community engagement and making greater use of digital tools. While digitalisation could radically improve the scope of engagement, these technologies are also disruptive. For example, one of the major blocks to introducing digital planning is the lack of a common, agreed data standard - if the government wants to bring about real change it could start there.
This is a 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 (84-page / 4MB PDF). 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.
The government intends to reform the local plan system in three ways:
The white paper says that local plans should be "significantly shorter in length", with a reduction of around two thirds proposed. It also says that legislation will provide for the local plan process to be completed within 30 months, and that there will be "sanctions" for authorities who fail to achieve this.
Local plans are almost always lengthy documents with a library of evidence base documents sitting behind them, and so aspirations to reduce this are welcome. The introduction of the National Planning Policy Framework (NPPF) in 2012 has shown us that concise policy documents can assist in more efficient assessment and decision-making.
The introduction of the National Planning Policy Framework in 2012 has shown us that concise policy documents can assist in more efficient assessment and decision-making.
However, we question how the stated sanctions would work. If they are to be financial in nature, it is difficult to see how this could do otherwise than penalise already cash strapped local authorities. The secretary of state already has powers to intervene in a local authority's plan-making process if he or she wants to – but despite this, as the paper reminds us, only 50% of local authorities currently have an updated local plan in place.
New local plans will be required to designate land into one of three categories:
The paper suggests that the local planning authority (LPA) calls for suggestions for areas under each of these three categories in the first six months of the plan-making period.
However, land constraints do not respect natural boundaries, and there may be a need to consider leaving "white" or "clear" land undesignated in between these areas. For example, land that abuts a conservation area may not fall neatly into one of the three areas given the impact that its development may have on the conservation area. There will also be implications for areas which are the subject of safety-related restrictions under the Control of Major Accident Hazards (COMAH) or Radiation (Emergency Preparedness and Public Information) Regulations.
As part of the 'good design' agenda, legislative change is proposed to require any areas designated as 'Growth' areas to have an accompanying "masterplan" and "site-specific code" agreed as part of the 'permission in principle' that will be extended as part of the Growth designation. While the masterplan concept would reduce uncertainty for those bringing forward development in a Growth area, it is difficult to see how such an ambitious level of detail could be achieved within the local plan process itself, given the proposed new time limit and the emphasis on front-end community engagement.
The paper suggests that site-specific codes and masterplans could be developed "subsequent to" the local plan being approved. However, it also states that these documents "should be in place prior to detailed proposals coming forward" in the area which leaves potential for an awkward gap, delay, conflict and resulting uncertainty.
The paper says that masterplans could in some cases be prepared by the site promoter rather than by the LPA. This makes it difficult to see how the process would differ much from the stages a major site goes through today; from obtaining outline consent for a masterplan and then a detailed permission, particularly if the site has the benefit of a compatible plan designation akin to a Growth categorisation. However, if the LPA prepares the masterplan and site-specific code, developers may lose control of the masterplanning stage in terms of both time and design output, as final site-specific codes have the potential to limit design and delivery options. At a time when adaptability and need for innovation is paramount, this could hinder the delivery of complex schemes – which, as we have commented on, face particular challenges as well as opportunities through these reforms.
The government has proposed that there will, as now, be an examination into the local plan. However, it is noteworthy that the white paper refers to potential options to remove the public examination process - instead, requiring LPAs to undertake a process of self-assessment against set criteria and guidance - and the removal of the automatic 'right to be heard'. That these options are even referred to shows just how far the government might be prepared to go. The concern here is that local communities could end up having less of a say than they do now on individual planning applications, particularly if LPAs classify areas as Growth or Renewal instead of Protected in order to meet housing targets and focus on increasing economic growth.
The paper expressly says: "we will consider the most effective means for neighbours and other interested parties to address any issues of concern where, under this system, the principle of development has been established leaving only detailed matters to be resolved". Again, however, there is no detail on how this will be secured, by making sure the process is fully inclusive and democratic rather than taking a 'top down' approach.
The second part of the paper is focused on how the new system will create beautiful and sustainable places, largely through common and adopted standards. We have previously discussed the design and sustainability implications of the paper, including the proposal to abolish sustainability appraisals associated with local plans. This raises questions over when environmental assessment should take place. If detailed masterplans and codes are not approved at the same time as the local plan, and subsequent applications will not require an assessment, it is difficult to see how decision-makers can ensure adequate mitigation, management and enhancement measures are secured and that the biodiversity net gain mandated by the Environment Bill is being delivered.
Aside from the potential for a radical change to environmental impact assessments (EIAs) and even to assessments under the Habitats Regulations, one way the government proposes to streamline environmental assessment is through increased provision of publicly available national and local-level data in digital form. The intention is that this will make it easier to re-use and update information and reduce the need for site-specific surveys.
The introduction of digital planning to the policy mainstream is no surprise. The Building Better, Building Beautiful Commission's Living With Beauty report (190-page / 7.7MB PDF), published in January, called for a "profound re-engineering" of the planning process; and the Connected Places Catapult has already issued a digital planning 'manifesto', produced jointly with the Royal Town Planning Institute (RTPI).
Increasing the use of digital technology is not limited to environmental assessment. Every aspect of the government's ideas for reform of the system includes some call for digitisation, with specific proposals including:
Much of this is welcome, and even overdue. The ability to model pedestrian footfall or access real time data on air quality will transform the way in which these impacts are taken into account in development proposals, subject to when the assessment of impacts is to take place. Being able to access a wider range of participants through agile consultation methods can only improve the engagement process, which is vital given that these proposals will front load engagement to the local plan, rather than at the detailed application stage. Standardised policies that facilitate automated assessment will improve the quality of decision-making while delivering time and cost efficiencies.
However, digital technologies will also be disruptive, and there are likely to be teething problems as the analogue and digital works collide. Greater use of digital tools will improve engagement, but consultation processes are underpinned by common law principles and, as in the recent Stephenson case, the courts will quash decisions that do not observe them. Artificial intelligence (AI), and machine learning in particular, are significant assets in the decision-making process, but the powerful algorithms are also opaque - a particular issue for the planning system where it is essential to show how decisions are made.
Moving from a document to a data-driven process will also engage parallel compliance regimes such as the data protection rules and the Environmental Information Regulations. As the recent Holborn Studios case showed, non-compliance with disclosure requirements such as those in the 1972 Local Government Act may lead to a permission being quashed. While there are proven benefits of wider access to public data sets, the government's own Centre for Data Ethics and Innovation has recognised that this raises significant trust issues.
The government's proposals will not provide any quick wins. Rather, these are proposals that will take time to put in place properly. Implementation of these proposals should not be rushed through, as this could be counter to good planning, good engagement and the wider economic recovery. This would only serve to delay, and hinder, new development.
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.
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