Michael Gallimore reflects on the coalition government’s planning reforms and looks ahead to what’s in store under the new regime
The coalition government’s tenure can perhaps best be summarised by the three strands that dominated its legislative and policy programme in the planning field: the emphasis on localism, the encouragement for economic recovery and the delivery of new housing.
Following the 2010 general election the buzzwords in planning were “big society”, “localism” and “open-source planning”. Eric Pickles, then-secretary of state for communities and local government, and Greg Clark, then-minister for decentralisation, were charged with introducing fundamental planning reforms to deliver the localism agenda and to put planning powers back in the hands of local people. “Localism” was characterised as an approach based on decentralisation and the promotion of community involvement in decision-making and the formulation of policy.
The first victim of this new approach was regional planning, when the government announced it would abolish the unelected tier of regional planning and transfer power back to local planning authorities. Regional spatial strategies were abolished, described by Pickles as “a national disaster that robbed local people of their democratic voice, alienating them and entrenching opposition against new development”. The alternative was for local authorities to take control and set their own housing targets encouraged by “powerful incentives”.
Concern over the ensuing policy vacuum was assuaged by the promise of new national policy that emerged in the form of the National Planning Policy Framework (“NPPF”).
Localism Act 2011
The manifestation of localism came with the Localism Act 2011 (the 2011 Act), which received royal assent on 15 November 2012.
The 2011 Act contained measures to allow local communities to plan the development of their own neighbourhoods and to formulate local plans. The development industry had to accommodate new concepts such as neighbourhood plans, neighbourhood development orders and local community right-to-build orders.
One of the most controversial aspects of the 2011 Act was the formulation of assets of community value, facilitating the protection of buildings seen as valuable to local communities and imposing a temporary moratorium on their sale to allow the local community to bid for and acquire those assets.
Some statistics supported that initiative. The government pointed to the fact that the number of libraries had fallen from 3,066 in 1988 to 2,820 in 2010 and that, since 2002, around 8,000 pubs had failed. However, what the legislation overlooked was the resources available to communities to pursue such purchases and that predictably such designations would be pursued by local groups as an additional weapon to frustrate development.
The 2011 Act contained a range of other important and helpful measures, including tightening up the enforcement regime following a number of high profile cases of fraudulently disguised development and new rules on pre-determination, allowing elected council members to become more involved in planning applications before determining them.
The localism agenda had a further dimension. The previous government had taken out of the hands of ministers’ decision-making on major new infrastructure with the formation of the new infrastructure planning commission. The IPC was replaced by a new major infrastructure unit within the planning inspectorate. The final decision on whether to approve nationally important infrastructure projects was transferred to the secretary of state, thus restoring the democratic legitimacy seen to be missing from the previous regime.
Throughout this legislative process the development industry breathed one huge sigh of relief. The threat of third-party rights of appeal had again been raised during the early days of the coalition government but soon disappeared with an announcement that such rights would not be pursued.
Further legislative reform
Reform continued apace and the Growth and Infrastructure Act 2013 came into effect in April of that year.
However, it was noticeable that three years into the life of the government the focus of the reforms had changed. Elected at a time of recession and economic austerity, the government’s attentions had changed to economic recovery and the growth agenda. This was reflected in the content of this further legislation, which contained measures allowing:
- an opportunity to apply direct to the secretary of state for planning permission in the case of a poorly performing local planning authority;
- the modification of section 106 obligations which contained onerous affordable housing requirements;
- changes to the rules for the registration of town and village greens; and
- the broadening of the definition of nationally significant infrastructure projects to include business and commercial projects.
These changes were coupled with developer-friendly amendments to the judicial review system in the Criminal Justice and Courts Act 2015, which included a reduction in the time limit for making legal challenges to six weeks.
Meanwhile, complementing the legislative changes, in March 2012 the NPPF was published. Possibly the most contentious element of the coalition government’s agenda, the NPPF had seen fierce opposition from a number of bodies including the National Trust and the Campaign for the Preservation of Rural England, played out in some controversial reporting in the Daily Telegraph.
The NPPF was billed as a single and concise statement of national policy, reducing the previous guidance from several thousand pages to a mere 59. It was introduced as a user-friendly and accessible document, revoking most previous policy statements and providing a basis for economic growth.
While the default answer of “yes” to all development was removed from the final version, it contained the all-important presumption in favour of sustainable development, meaning that development proposals should be approved where there is no local plan or no up-to-date local plan, if the impacts of development do not outweigh its benefits.
With its emphasis on the need for a five-year supply of housing, the NPPF has been a major factor in approvals of new housing schemes, overcoming local resistance to housing development.
Alongside the NPPF, the government introduced national planning policy guidance. Online guidance with an emphasis on accessibility to the public, it claims to have reduced the amount of guidance by 90%.
The coalition government’s obsession with the delivery of housing was apparent throughout its tenure. However, it has been much criticised for implementing a series of knee-jerk changes on the issue rather than a carefully planned and thought-through programme of legislative and policy change.
This was particularly evident in the approach to permitted development rights for changes of use from office to residential. Consulted on in September 2011, rejected in summer 2012 and introduced out of the blue in May 2013, it facilitated changes of use subject to a prior approval process. Very few exceptions were permitted and a High Court challenge to the exception process by the London Boroughs of Camden, Islington and Richmond was rejected.
The outlook
It is clear that the new Conservative government intends to continue the emphasis on housing development, under the direction of communities and local government secretary, Greg Clark, and minister for housing, Brandon Lewis.
The Conservative manifesto promised:
- locally-led garden cities and towns;
- a programme of devolution to large cities which choose to have elected mayors;
- a strengthening of the community right to build;
- continuing to put local people in charge of planning decisions;
- protection of the green belt and an emphasis on developing brownfield land; and
- stronger protection of natural landscapes.
The Queen’s speech promised a Housing Bill, Energy Bill and a Cities and Local Government Devolution Bill.
Two further thoughts: the development industry is almost unanimous in its desire for a period of stability. Yet more fundamental planning reforms are unlikely to provide the certainty required if economic growth is to be achieved.
Also, while housing development is undoubtedly an important priority, there are other sectors that also need support. For example, a vibrant industrial sector is critical to the economy and it would be a mistake if the emphasis on housing was to detract from the need to encourage other sectors.
Michael Gallimore is head of planning at Hogan Lovells International LLP
