Out-Law Analysis | 14 Jul 2020 | 11:15 am | 5 min. read
The UK government has made bold promises to reform the planning system to deliver infrastructure and housing. Most necessary planning tools are already in place but they need refreshing, resourcing and rebooting.
There are tweaks the government can make to enable its vision without upending the whole planning system.
Some are easy wins which will allow the government to show it has moved quickly. Others will need more thought and innovation if they are to be delivered within existing systems and structures.
As the East Midlands has been arguing, a new model of urban development corporation should be created. Like the locally-led New Towns model - albeit unimplemented to date - this hybrid approach should be locally-led and accountable and adapt suitable powers from the wide range of pre-existing models. The result should enable difficult sites to be brought forward and regenerated.
The government is today finishing consultation on freeports and intends to establish up to 10 across the UK. This model should be introduced and freeports created as soon as possible. This can be done without radical reform and will enable flexible zoned development at appropriate locations. The future planning framework for freeports, particularly permitted development rights and local development orders, should be sufficiently flexible to overlap with other special interventions, including development corporations, so that mutual benefits can be harnessed. Freeports could be an important vehicle to enhance the UK's position as a global trade centre with open trade borders.
NPSs are the fundamental cornerstone of the development consent order (DCO) planning regime for nationally significant infrastructure projects, so each NPS must be robust and kept up to date. As the existing NPSs age yet further, the government must give them greater attention if the regime is to continue to be as certain, functional and effective as it was at the operational start of the regime in 2010. Legal actions are brewing in the meantime.
What is needed is the refreshing, adequate resourcing and rebooting of existing structures, policies and processes with some limited legislative change.
Some NPSs need updating to cover good design and environmental issues such as net zero and net gain. The government must resource this properly to ensure continued policy certainty and, in doing so, draw on evidence of need that has already been developed by bodies such as the National Infrastructure Commission.
Government should give consideration to designating a suite of regional NPSs. For example, planning for the Cambridge-Milton Keynes-Oxford arc could be expedited if there was a region-specific spatial NPS. This would provide support for large infrastructure, housing, commercial and business development proposals within the arc. They could also then use the DCO process for more effective consenting and delivery.
Large scale housing developments are struggling to be adopted through the local plan process due to concerns about deliverability and infrastructure costs associated with their scale. This type of development should in principle be able to be brought forward as a nationally significant infrastructure project (NSIP) where appropriate.
Implementing this change would require careful consideration, but there is potential for a more efficient consenting process which allows large scale housing to be directly planned and consented alongside supporting infrastructure. Regionally-focussed NPSs or a housing-specific NPS could support this policy, with potential links to funding settlements such as the housing infrastructure fund. A report last week by planning consultants Barton Willmore suggested that this way of producing planning policy could apply to both the DCO and the Town and Country Planning Act 1990 regimes, and could work in a similar way to the NPS for ports.
To deliver housing as opposed to economic infrastructure DCOs, less detail and greater flexibility is needed and that requires a shift in the government's and the Planning Inspectorate's practice and approach. That flexibility should enable detail to be addressed at a local level and at a later stage. This would help ensure that innovation can be applied over the 20-30 year implementation period in some cases and will be central to ensuring that some of the positive aspects of existing planning regimes are not lost.
Currently these types of project need to step through an extra layer of planning bureaucracy – a section 35 direction under the Planning Act 2008 – before they can be consented by DCO. A new category of NSIP, with an associated business and commercial NPS, could be created so that business and commercial projects automatically fall within the DCO regime and can be consented that way if the developer chooses.
All NSIPs are currently required to go through a full DCO examination regardless of the size, sensitivity of location or type of project. This approach should be adapted so that, where appropriate, the Secretary of State can intervene to reduce the examination period to less than six months.
In addition, local and regional public bodies could be allowed to bring forward projects that would benefit from the powers available through and the certainty created by the DCO process. They should be able to do this without having to get section 35 directions - local and regional infrastructure can be nationally significant too, even more so in these times.
It is slow and cumbersome to change a consented DCO and so this deters potential developers and loads unnecessary detail and conservatism into the original DCO. We suggest that:
A real benefit of the DCO regime is the certainty it gives because of its statutory decision timescales. This should be applied to other consenting regimes including Transport and Works Act Orders.
LDOs are effective at accelerating the delivery of development in well defined design and environmental frameworks. Their application could be simplified to facilitate greater use with these changes:
Statutory bodies involved in infrastructure consenting regimes, such as the Environment Agency and Natural England, should be resourced better to eliminate the unnecessary delays which often occur, speeding up the end-to-end process.
Proposed NPSs involve extensive consultation, parliamentary scrutiny and approval. Given parliament's approval, government should legislate to protect NPSs from judicial review once they have been designated. In addition, keeping NPSs up-to-date would ensure they remain fit for purpose and accountable.
Individual projects are being delayed due to some legal challenges lacking merit. The government should make it easier for courts to refuse permission for a judicial review to proceed in unarguable cases.
What is needed is the refreshing, adequate resourcing and rebooting of existing structures, policies and processes with some limited legislative change. This will ensure that the promised infrastructure for the national recovery and levelling-up is delivered sooner, more efficiently and sustainably, and without all of the delays and uncertainties that would be created by an unnecessary and costly 'root and branch' reform of the planning system.
Co-written by Nick Mansell