Martin Edwards looks at the challenges faced by the planning system, both past and future
Key points
- Brexit uncertainty has already hit UK housebuilders
- Planning reforms and Brexit have strengthened the forces of nimbyism
The summer break usually provides an opportunity to reflect on the year so far. This year, however, it is less an opportunity, more a necessity. So far, 2016 must be one of the most tumultuous periods in modern British history. Two recent events – the Brexit vote and the Chilcot inquiry – have exposed the failings of the political class as never before.
Over the years Planning Notes has commented on political shortcomings in planning and development but it seems that those failings run wider and deeper. The country now faces a prolonged period of uncertainty and no one really knows what the outcome will be. Anyone who claims they do is either brave or foolhardy.
Building the future?
One thing is clear: no matter how protracted and tortuous the Brexit negotiations may be, the country still needs to build significantly more new homes and invest in crucial infrastructure without delay. Unfortunately, one sector that appears to have taken an early hit is the construction industry and, more worryingly, the housebuilders. It would be little short of a catastrophe if the pace of new homes declines. It is collateral damage that the country can ill afford.
It is not as if housebuilders did not face enough difficulties. Project Fear is rapidly beginning to look like Project Fact. Whether this proves to be but a passing phase only time alone will tell, but the impact on housebuilding is already starting to bite.
A country divided
There is, however, one disturbing feature that the Brexit vote exposed and that is that the country is bitterly divided, exposing a gulf between not just the haves and the have-nots but also the old and the young. It is the young, and those that the recovery has passed by, who will suffer the most.
Add to this the clear imbalance between London and the rest of the country and you have a toxic cocktail of competing agendas.
Relentless reforms
So this raises the question: will the planning system cope? It is not as if the system has been overlooked by Westminster. Far from it. There has barely been a moment in the past 15 years when it has not been subject to substantial imposed legislative change, much of which has lacked any coherence. Apart from this, the onslaught has meant that those tasked with operating the system – developers, planners, lawyers and landowners – have barely had a chance to pause for breath before the next “reform” is forced on them. Remember the plan to abolish planning obligations in the Planning and Compulsory Purchase Act 2004? There was no evidence to justify this. So it was no surprise that this was quietly dropped in the Planning Act 2008. What about the short-lived Infrastructure Planning Commission or regional planning? Neither proved either workable or popular. Both, however, were perceived as taking planning further away from the people. Centralism was not a success.
Power to the people
In response, Westminster turned to the concept of localism and neighbourhood planning. The underlying philosophy appeared to be to transfer responsibility for taking difficult planning decisions from Whitehall to the local community. This was made clear in Tewkesbury Borough Council v Secretary of State for Communities and Local Government and others [2013] EWHC 286 (Admin); [2013] PLSCS 57 but, anecdotally, localism appears to have given legitimacy to nimbyism, encouraging locals to oppose any development that they perceive as a threat to their bucolic idyll.
Similarly, prior to the Localism Act 2011 there had been an increase in the number of applications to register new town and village greens. These were proving to be such a potent deterrent to development that the government legislated in the Growth and Infrastructure Act 2013 to limit the efficacy of these applications. Some might say that there are similarities between the forces of nimbyism and the desire on the part of Brexiteers to “take back control” and few would doubt that the Leave vote was driven partly by a desire to give the Westminster political class a kicking.
Arguably, the Housing and Planning Act 2016, while appearing to leave the neighbourhood planning system intact, re-imposed more central control over local planning authorities, particularly in the arena of development plan preparation. In reality, neighbourhood planning will work only if it delivers on the government’s agenda to build more homes and provide infrastructure. This could create new tensions between Westminster and local communities.
In recognition of this, the new prime minister has already made clear her determination to tackle the “housing deficit” and to provide new infrastructure through more Treasury-backed project bonds. So the suggestion that the use of community benefit packages, which reward residents rather than local authorities, may be seen as part of the payback for their delivery.
A painful extrication
Brexit brings other problems as well. How much of the planning system will be unravelled as part of EU withdrawal? In the short term, disentangling the UK from much of the EU inspired planning and environmental legislation, may be difficult logistically. In the longer term though, will the country tolerate a lessening of current environmental protections? If not, could this set nimbys against Brexiteers?
Enjoy your break. Rest assured, when you return it will not be business as usual.
Martin Edwards is a barrister at Cornerstone Barristers
