Simon Ricketts asks what we can expect for our planning system in 2020.
Writing the prequel to this piece 12 months ago was particularly difficult, with Theresa May leading a minority government towards a potential EU exit date of 31 March 2019, lacking political bandwidth for anything.
We now have a different prime minister, with a freshly minted clear majority. There surely is no obstacle to passing the necessary legislation to achieve an exit from the EU on 31 January on the basis of the currently negotiated agreement – although an immense amount of effort will need to go into the deadline of achieving an EU trade deal by the end of 2020 if we are not to return to the unwelcome prospect of a “no-deal” Brexit.
Assuming business as usual…
This is the wider backdrop to the domestic social, economic and environmental agendas, for which one of the main delivery levers is – yes, of course – the planning system.
The Conservatives’ manifesto, given their focus on the “get Brexit done” mantra, was extremely light on planning reform, despite the ministerial noise before the election was called.
Assuming “business as usual” at the Ministry of Housing, Communities and Local Government, to an extent we should soon expect:
- the Accelerated Planning green paper (originally due to be published in November 2019), described by Robert Jenrick on 1 October 2019 as “a new blueprint to create a simpler, fairer system that works for everyone – from home owners to small and medium businesses, local communities to housing developers”;
- publication of the Building Better, Building Beautiful Commission’s final report (originally due to be published in December 2019), the recommendations of which may well go significantly beyond what we might consider to be “design” issues;
- chiming with the commission’s work, continuing encouragement for local planning authorities to publish local design codes;
- publication of housing delivery test results for 2019 (important because the results will determine which authorities have failed to deliver the ratcheted-up delivery requirement of 45% and are therefore subjected to the “tilted balance”, making it more difficult for them to refuse applications of non-policy-compliant housing development proposals in their areas);
- continued encouragement that communities put forward buildings for “local listing”; and
- uplifted standards for Part L of the Building Regulations and changes to Part F, as part of the tougher energy efficiency requirements promised by the Future Homes Standard.
Applying the manifesto
We then need to overlay this with what hints there were in the Conservative manifesto:
- there will be an “English Devolution White Paper” this year – what does this entail for local and supra-local authority structures and decision-making?;
- continued reliance on a target of 300,000 homes being delivered annually by the “mid-2020s”, and at least 1m homes over the five years of this parliament;
- a commitment that more homes will be “offered to local families” at a one-third discount to market value, potentially also to be available for “key workers”. Another flavour of affordable housing, again in the form of “discount to market” rather than social housing – and no reference to the previously promised but entirely undelivered “Starter Homes” initiative;
- a commitment to “amend planning rules so that the infrastructure – roads, schools, GP surgeries – comes before people move into homes”; and
- nudges by way of funding streams aimed at regenerating towns (the Towns Fund), safer streets, a cultural capital programme (£250m) and a community ownership fund (£150m) “to encourage local takeovers of civic organisations or community assets that are under threat, eg local football clubs but also pubs or post offices”.
Infrastructure, particularly in the north of England, will be a priority. In his victory speech, the prime minister talked of “colossal new investments in infrastructure”. Against the background of such boosterism, surely any significant restraint of the runaway train that is HS2 is unlikely, whatever the findings of the awaited Oakervee review. An additional £100bn towards infrastructure funding has been promised, with announcements as to specific projects to be published with the forthcoming budget. There will also be significant funding in roads, including encouraging a national network of electric vehicle charging stations.
In relation to the proposed expansion of Heathrow, the prime minister has long since dropped his commitment to lie in front of the bulldozers. The Court of Appeal will hand down its ruling early in the new year as to whether the government’s national policy statement, which forms the foundation for the proposals, is lawful. The airport is due to submit its application to government for a development consent order this summer.
Planning in London will continue to be politically charged. Labour mayor Sadiq Khan faces re-election in May, but is surely a shoe-in, despite probably failing to achieve adoption of his new London Plan before purdah starts in mid-March. I predict further projects where the mayor intervenes in relation to borough decision-making, only for the secretary of state to call in the application. We await the outcome of the Royal Borough of Kensington and Chelsea’s judicial review of the mayor’s decision to intervene and grant planning permission for the Kensington Forum Hotel project.
Boris Johnson also referred in his victory speech to making “this country the cleanest, greenest on earth with the most far-reaching environmental programme” and repeated the commitment brought into law by his predecessor that the UK will be carbon-neutral by 2050.
Environment Bill
There is a lot to do. One of the consequences of calling the December 2019 General Election was that the Environment Bill fell, shortly after passing its second reading. It will be reintroduced into parliament at the earliest opportunity but its progress will then need to be swift, given that it is the vehicle for introducing the environmental protection and governance regime required for life after Brexit from 1 February. Of course there is insufficient time for the proposed “environmental principles” to be finalised, let alone creation of the proposed Office for Environmental Protection and the consequent interregnum could lead to some fraught political and legal issues.
The Environment Bill contains other proposals which will have an important influence on the planning system:
- a proposed biodiversity net gain requirement for most planning applications, requiring that every planning permission be deemed to have been granted subject to a condition that the developer has submitted a biodiversity net gain plan to the planning authority and the authority has approved it. The plan will have to demonstrate that the biodiversity value attributable to the development exceeds the pre-development biodiversity value of the onsite habitat by at least 10%; and
- a system of “conservation covenants” – voluntary agreements between land owners and a “responsible” body such as a conservation group or government body, setting out conservation obligations that will be legally binding not only on the landowner but on subsequent owners of the land.
Other potential changes
Of wider constitutional relevance, but with potential implications for the judicial overview of our planning system, is the manifesto’s promised establishment of a Constitution, Democracy and Rights Commission and a proposal to “update” the Human Rights Act 1998.
Back closer to home, would anyone place a wager as to the MHCLG line-up come the end of the year? Surely, stability within the ministerial team would be too much to hope for?
It is interesting to note the lack of references during the election period to permitted development rights. Will the new government now get a grip on the problem caused by sub-standard office-to-residential conversions and give up on the idea of permitted development rights in relation to upward extensions and in relation to residential rebuilds on commercial sites? Also, note the absence of references to neighbourhood planning. The Accelerated Planning white paper will certainly make interesting reading: will it focus on process efficiencies, building on the example of the largely successful Rosewell Review into reform of the planning appeal inquiry system, or embark on more fundamental reform? Plenty to watch out for in the months ahead.
Simon Ricketts is a partner at Town Legal LLP
