The wait is over. Or is it? Simon Ricketts weighs up the likely shape of 2022 from a planning perspective.
In 2022, we may expect the government finally to deliver on what was promised for 2021. Twelve months ago, we were anticipating a response to consultation on the August 2020 Planning for the Future white paper, but everything changed with the political backlash to some of the proposals, fuelled by the outcome of the June 2021 Chesham and Amersham by-election and the appointment of Michael Gove as the secretary of state of a renamed Department for Levelling Up, Housing and Communities in September 2021.
We await the outcome of the secretary of state’s announced pause to the reform proposals, but it seems clear that a Planning Bill will come forward in 2022 that will be a far cry from the radical ideas as to zoning and mandated housing delivery targets for local authorities that were at the heart of the white paper’s thinking.
Instead, it seems that the Bill’s focus will be the continued digitisation of the system, practical and needed procedural reforms and (likely to be the source of much heat during the year) the proposed replacement of the community infrastructure levy with a new wider infrastructure levy that will also raise money for affordable housing rather than leaving this to section 106 negotiations.
Of course, the Bill could still contain surprises – for instance, Policy Exchange’s “street votes” idea for homeowners collectively to vote on whether extensions should be allowed without the need for planning permission.
Playing a waiting game
A year ago, we were anticipating an already delayed English devolution and economic recovery paper that then became rebadged as a Levelling Up white paper, expected finally to see the light of day in December 2021 before being delayed again until early 2022, just before publication.
From newspaper rumours, it seems that, in contrast to the planning reforms, the proposals in the white paper are going to return to a more radical set of reforms, along the lines of those first floated by think tank Centre for Cities in September 2020.
The rumours (fuelled by apparent sight by The Independent of a leaked draft of the paper, albeit not yet signed off by the levelling up cabinet committee or by the Treasury) are of proposals for a gradual move to a single-tier system of local government in England, with widespread introduction of mayors and (close your eyes, those who dislike Americanisms) “governors”, with the migration to this system encouraged by the negotiation of “county deals” and use of similar funding pots. Local enterprise partnerships appear to be for the chop. There is talk of a “statutory levelling-up quango”. Counties are likely to have an important role, and indeed the County Councils Network has published its own proposals, which if accepted may see the nation return to a more structured, sub-regional, form of planning.
Twelve months ago, we were waiting for Defra’s consultation, already by that stage delayed, as to its proposed reform of EU environmental processes such as environmental impact assessment, strategic environmental assessment and habitats. We still await the consultation. The delay is curious, given that this is an area where the government might have been expected to demonstrate some “Brexit dividend”, given politicians’ pre-Brexit references to the supposed constraints of EU directives on environmental matters.
As it happens, this is an area where reform would be likely to deliver some beneficial outcomes and which is topical given the de facto veto on development in areas of north Sussex as a result of Natural England’s demand for water neutrality in the wake of concerns over the impacts of water abstraction on the Arun Valley special protection area. This follows on from equivalent vetoes in relation to nitrates and/or phosphates in specific areas of the country.
Environmental imperatives
Indeed, during the year we shall no doubt see a growth in disputes and litigation arising from conflicts between the needs for housing and economic growth, to be met via the operation of the planning system, and the needs for protection of the environment and for action to be taken to tackle the climate emergency.
This will play out in many ways, as we are already seeing, for instance in relation to questions of refurbishment versus redevelopment and to the rationing of road space between different categories of user, as well of course as in connection with aviation and energy projects. We will also see the gradual introduction of local design codes and guides and the shaking down of the new “beauty” agenda, embedded in national planning policy guidance in July 2021 and now a recurring focus in decision-making, both at application stage and on appeal.
The Environment Act 2021 finally became law in November, and the process now starts of turning its headlines into enforceable mechanisms by way of secondary legislation. Biodiversity net gain is unlikely to become a statutory requirement until late 2023, but we expect to see consultation on the detail over the coming year – and we expect to see an increasing number of local authorities adopt policies and generally behave as if the 10% net gain requirement is already in force. Following the November 2021 consultation process, we are likely to see a revised suite of energy national policy statements to guide decision-making on nationally significant infrastructure projects.
Other known unknowns
The Judicial Review and Courts Bill is at report stage and no doubt will be enacted in 2022, making relatively self-contained changes to judicial review, so as to enable suspended quashing orders.
Since 28 December 2021, the requirement for 25% of all affordable housing to be by way of the government’s “first homes” mechanism applies to most schemes, with an extended 28 March 2022 deadline applying for schemes where there can be shown to have been significant pre-application engagement.
Depending on progress in our war against the coronavirus pandemic, we are likely to see continuing uncertainties during the year as to whether the Planning Inspectorate’s inquiries, hearings and examinations should be in person or virtual. Local authorities are in a more difficult position, given that the temporary primary legislation that allowed authorities to meet remotely has now lapsed. What is the “plan B” if in-person planning committee meetings again prove imprudent, or impossible?
The timing of decision-making will also be influenced ahead of the local elections due to take place on 5 May 2022, which include elections for all London boroughs. Sensitive decisions are unlikely to be made even before the formal pre-election period starts with publication of the notice of the election. After 5 May, there will be a further period of delay while committees are formed and positions put in place.
Brisk business in the courts
The Planning Court will remain busy, that’s for sure. In February, it will hear the challenge by the London Historic Parks and Gardens Trust of the secretary of state’s decision to grant planning permission for the holocaust memorial in Westminster (London Historic Parks and Gardens Trust v Secretary of State for Housing, Communities and Local Government) [2020] EWHC 2580 (Admin); [2020] PLSCS 180).
The Supreme Court will issue its decision in the private nuisance case between Tate Modern and nearby residents complaining about being overlooked by those on its viewing gallery (Fearn and others v Board of Trustees of Tate Gallery [2020] EWCA Civ 104; [2020] EGLR 14). The Supreme Court will also hear Hillside Parks’ appeal from a judgment of the Court of Appeal in 2020 on the important practical question of overlapping planning permissions (Hillside Parks Ltd v Snowdonia National Park Authority [2020] EWCA Civ 1440; [2020] PLSCS 199).
Watch this space!
Simon Ricketts is a partner at Town Legal LLP
