Planning matters

Over the weekend there has been much written and spoken about Ruth Davidson's article on the new blog platform UnHerd. And quite right too - it's interesting and well worth a read, as it presents a view on planning as part of a wider commentary about leadership and the need to reform capitalism.

 

For those who may not know or remember, Ms Davidson was the one shining light in an otherwise rather poor Conservative Party election campaign. She is the Scottish Conservative Leader and the Member of the Scottish Parliament for Edinburgh Central. UnHerd was launched over the weekend, it being described by the Spectator as a centre-right blog and the brainchild of Tim Montgomerie, the founder the conservative home website.

 

Ms Davidson's blog is entitled 'Ctrl + Alt + Del. Conservatives must reboot capitalism' and was posted on 22nd July. Her opening gambit is that the world is a richer, healthier, better educated and more equal place because of the developing world's growth and the achievements of capitalism. In order to demonstrate the point she states:

But her blog then questions how if capitalism has achieved such success why are people, and in particular younger people, losing faith in its ability to make their lives better? And Ms Davidson points to the rise of the populist right and left, in the form of Donald Trump and Jeremy Corbyn, as a direct response to this.

 

Then comes some hard-hitting stuff when Ms Davidson seeks to present a teenager's perspective of an unequal world. She questions, "Is the route for social advancement a degree, student debt, moving to London to spend more than half their take home pay on a shared flat in Zone 6 and half of what's left commuting to their stagnant-wage job every day every day; knowing there is precisely zero chance of saving enough to ever own their own front door?"

 

Ms Davidson is adept at picking up the mood of the moment - in the same way that Jeremy Corbyn has done recently - and she makes the contrast between the haves and have-nots even starker by referring to some footballers being bought and sold for more than the entire economy of a third world nation!

 

Her blog stresses the need for true leadership to deal with restrictive practices alongside enabling and facilitating investment in genuine productive activities. She refers to investment in technical education doing much more for long term wage growth than putting workers on boards and in order to demonstrate where she thinks the priority for action should lie.

 

On planning it is interesting to note that this forms a central part of Ms Davidson's thesis, reflecting just how acute the housing crisis has become. After taking a swipe at how planning law privileges those who already have a property, she sets a positive agenda for change. She proposes policies of 'help to build' rather than 'help to buy' and seeking to make increasing housing supply a 'thing of beauty' to build local support for extra construction. There is not really that much new here that hasn't been said by others before, but the underlying tenor of the article is about emphasising the need for bold and positive action.

 

This is all against the background of Ms Davidson calling for the short term, election cycle nimbyism of prohibitive planning laws needing to stop and the government needing to lead, rather than merely facilitate discussions about where next for Britain.

 

There is a certain freedom about her writing that is refreshing - but it is  also seemingly somewhat naive. Calling for prohibitive planning laws to be lifted, for example, will very quickly lead to questions being asked about the Green Belt; and then discussion is then likely as always to be short-lived, as politicians fear that any hint of relaxation of Green Belt policy will be tantamount to political suicide.

 

But it might not be naivety on the part of Ms Davidson; maybe she is representing the views of the millennial generation and maybe rising political stars, like her, will be bolder in tackling the more difficult issues facing this generation head-on. Jeremy Corbyn's rise in popularity is clearly fuelled by the younger generation and although Ms Davidson's and his politics are different the issues they are both talking about - and the way they are talking about them  with such with deep-rooted belief - are really very similar.

 

I don't think any major changes, along the lines that Ms Davidson's proposes, will occur any time soon. However the more time and effort that is swallowed up by the Brexit negotiations the louder the voices of the younger generation will probably become. And it's clear that housing and planning will be central to any call for action, whether that's inspired by the politics of the likes of Ruth Davidson or Jeremy Corbyn or any others that follow their lead.

In recent years ‘mansplaining’ has become an increasingly common part of the contemporary vocabulary, describing a situation where a man explains something to someone (often a woman) in a condescending or patronising manner, despite the explainee knowing more on the issue than the explainer. To avoid setting myself up for a fall by writing a blog on this issue I am going to focus on a new strain of this phenomenon– ‘plansplaining’.

‘Plansplaining’ is a term I came across through an article on the City Views website about how planners in the USA have a tendency to talk down to local residents when discussing new development proposals, despite the residents knowing their local area better than the planner does.

This struck a chord after years of attending public consultation events being told “you don’t know what the traffic/ecology/flooding is like here” and, particularly working in the north east without having a Geordie accent, “you’re not from round here so you don’t understand.”

Planners are often guilty of ‘plansplaining’ when discussing development proposals with local communities which can frustrate local residents – with so-called experts telling them that their views on the local area are either incorrect, irrelevant or worst of all ‘not a material planning consideration’.

A residents’ concern over the impact of development in the neighbouring field will not be eased by assuring them that the site is ‘green’ in the most recent SHLAA, the land is an emerging allocation in the draft Local Plan and that the Council cannot demonstrate a robust five year housing land supply.

The most effective means of avoiding ‘plansplaining’ is through the language used when discussing developments with the public. This needs to tread a fine line to ensure that it is not patronising whilst ensuring that the relevant information gets across. By the time a proposal reaches the public consultation stage it is highly likely that a great deal of thought and technical assessment has been undertaken to inform decisions – this needs to be conveyed to residents in the most effective and easily digestible way possible. Planners and the development industry are often guilty of providing too much information through reams of detailed technical information and text at public events.

Our profession has a tendency to talk in acronyms and abbreviations which a non-planner would struggle to decipher – a critical part of effective public consultation is avoiding this industry jargon. Consultation and engagement with local communities plays an ever increasing role in the planning system and the preparation of planning applications, with social media now an accessible tool for the mobilisation of local interest groups.

We need to be better at explaining why there is a demand for development in an area despite existing homes being for sale or shops being vacant. There needs to be a clear understanding of the negative impacts the development is likely to have whilst also being able to explain the benefits of the proposals to the local community.

It’s important to accept that developments will receive objections – the purpose of public consultation and engagement is not to try and persuade all local residents to support the proposals. The real purpose is to ensure that locals understand the full scope of the development and the scale of benefits which can be delivered through the scheme. A successful public consultation strategy will reduce the number of objections to a development and it will ensure that any remaining objections are based on a full understanding of the proposals rather than assumptions and suppositions.

No sooner has the dust settled on Places, People and Planning – a consultation on the future of Scotland's planning system which closed in April and the Scottish Government has issued another publication for consultation. The Government’s external consultant team has made it through the no doubt arduous task of collating and balancing the wide ranging views expressed and last week the publication of a Position Statement (open for comment until 11 August 2017) sees the ministers move closer toward publication of a Planning Bill which will give a clearer view of how their changes will look in reality.

The findings of the independent review last summer with its suite of recommendations included some headline-grabbing proposals (at least within the planning and property industry), such as abandoning Strategic Development Plans, the streamlining of development management processes through new permitted development rights and combined consents and an increased emphasis on the delivery of new homes.

These ‘big ticket’ items are undoubtedly of most interest to planning and development professionals: those responsible for navigating and implementing the planning system on a daily basis. The Position Statement published by the Scottish Government last week confirms that many of the proposals consulted on earlier this year remain on the table.

Some of the recommendations that have perhaps generated the least discussion, at least within the circles that I move within, are aimed at increasing public participation and trust in the planning system. The communities benefiting from or affected by development have the most vested interest in planning decisions, in both the development planning and development management processes. Their experience of change in the built environment is longer term than for those that facilitate it.

Ambitions to increase participation and trust in planning are not only laudable but vital. However, these ambitions could conflict with proposals to streamline decision making and facilitate delivery.

There are three interesting aspects of the recent and ongoing consultations which relate to these ambitions for increased community involvement, namely; (1) local place planning, (2) pre-application consultation and (3) involving children and young people in planning.

Proposals for ‘local place plans’ in Scotland bear more than a passing resemblance to our southern counterpart’s neighbourhood development plans. Research by Lichfields’ colleagues has shone a light on the fact that neighbourhood plans in England have resulted in some of the positive locally driven plan-making that they were intended to. But they have also been used in certain locations to frustrate and stymie development, caused in part by delays in the local planning process where neighbourhood plans have ended up being prepared in a policy vacuum. Scotland has a better track record in recent years in local development plans being up to date, so this may prove less of a risk, but it is a risk nonetheless.

This also begs the question about who these local place plans are targeted at, and what their purpose will be. While they will carry statutory weight, there won’t be a mandatory requirement to prepare one. In which case, will the communities with the greatest need for inward investment and regeneration mobilise to prepare a local place plan? Or, will it solely be groups in communities that are already well-established and actively engaging with the planning system that mobilise to prepare a plan? As a result, will such plans be prepared with a protectionist agenda?

There are already examples of good practice that we can learn from. Where there are positive interactions, taking place between community groups and the development planning process that go above simply written representations, these should be explored.

As an example of the plan-making process as it stands now, I was involved in an event where midway through a local development plan consultation, the community council invited all developers promoting sites within their area to present at a very well-attended public meeting. The prospective developers outlined their proposals and answered questions from the audience. The public were then able to provide direct feedback to the developers, which has in turn also informed the community council’s own response to the local authority’s Main Issues Report. This happened well in advance of the more common first interaction between developers and a community at pre-application stage; such interaction could form an integral component of local place planning and indeed local development planning.

If a similar process was implemented on a ward by ward basis, aligned with the proposed early examination gate check, it would at the outset encourage community participation in the consideration of sites. It would also do so in the context of the consideration of the housing land requirement component of plan-making which tends to progress with relatively little interest at a community level. Yet ultimately this lack of early engagement is what results in the allocations that can later become contentious.

The consultation earlier in 2017 asked whether more meaningful engagement with communities can be achieved within the current 12 week pre-application consultation period for major applications. In asking this, there appears to be an implication that the 12 week period might be extended. This would undoubtedly have come as disappointing news to developers.

The June 2017 Position Statement doesn’t make any suggestion to this effect, instead focussing on doing more within the same minimum period. Specifically, this will result in a requirement to feedback to communities following engagement, but presumably before submitting an application. Another proposal is that there will be a time limit for submission of an application, in other words giving a Proposal of Application Notice (PAN) a finite lifespan.

The knock-on effect is that where there is pressure for an early submission, as there almost always is, applicants will have to undertake engagement even earlier in the planning process. This will provide time to reflect, revise proposals and report back to communities (potentially in the form of a second public event) and avoid sailing too close to the expiry date of the PAN.

We’ll have to wait for the draft bill later in the year to understand the full details of these changes and their potential implications. What is certain is that the rules of community engagement are changing. The theme is more engagement, earlier in the process. Funnily enough, I’m sure that was one of the themes the last time the planning system was reviewed in Scotland.

The proposals for focussing engagement in planning on young people are a positive step forward and long overdue. Ultimately, our children and young people should somehow be encouraged to have far more interest, than us or our parents, in the legacy of the planning decisions made today for tomorrow. At the moment, from my own experience in pre-application consultations at least, under 30s are the least represented demographic in planning for their future.  My colleague Nicola Woodward has some innovative ideas for encouraging engagement in the development planning making process. (see her recent blog “Doing it for the kids”) 

Improving engagement during the development management process as well at the plan making process could present an opportunity to directly engage young people in local decision making, particularly through the use of technology. Developers may find that by engaging with young people, perhaps through a prescribed process facilitated by schools, they are able to tap into some of the silent majority who are less resistant to, and can see the longer term benefit of, change yet don’t voice an opinion on emerging proposals. This is not a specific proposal of the Review but it seems like a good one.

The deadline for comments on the position statement is 11 August 2017.  If you want to discuss what it might mean for you or your business or you would like Lichfields to make a response on your behalf please get in touch.

The recent judgment of the Supreme Court in relation to Suffolk Coastal District Council v Hopkins Homes and Richborough Estates v Cheshire East Borough Council raised a number of wider implications for planning, not least concerns regarding the role of the courts in planning decision-making and the over-legalisation of the planning process. For a number of years now, developers and landowners have used the judicial review process as a means of holding planning decision- makers to account, and ensuring the rigour of the planning system generally. Lichfields’ Newcastle office’s latest first-hand experience of the process in action offers helpful insight into both the workings of, and interrelationship between, England’s planning and legal systems, and the idiosyncrasies of a particularly well-used provision of the Planning Acts.

The case centred on the use of Section 73 (s73) of the Town and Country Planning Act 1990, which allows applicants to seek permission for a minor material amendment (‘MMA’) to a previously approved scheme. In this specific case, a developer in York had obtained planning permission for a mixed use development described as:

Planning permission was granted subject to a number of conditions, including a requirement for the development to be in accordance with various approved plans. A short time later, the developer sought to update these plans by way of an MMA application. Amongst other amendments, the MMA application included increasing the capacity of the cinema by around 20%, and increasing the overall amount of floorspace made up of town centre uses by around 40%. Lichfields were subsequently appointed by an existing cinema operator in York to review the s73 application, in light of the potential adverse impact on their own business.

During the course of this process it became apparent that the key question for the local planning authority to consider was whether, in fact, an alteration of this scale to the approved scheme could lawfully be approved (or indeed validated and then determined) by way of an MMA application. National Planning Practice Guidance advises :

The local planning authority contended that the proposed amendments were acceptable in this context, and proceeded to approve the application.

During the six week judicial review challenge period following the grant of planning permission, Lichfields worked with Counsel to review the appropriate case law and primary legislation. This process indicated that guidance on the issue is less than clear. Whilst Planning Practice Guidance acknowledges there is no statutory definition of an MMA it is, by definition, inferred that the changes sought by such an application must constitute ‘minor’ alterations.

High Court Judge Mr Justice Collins agreed that our client’s case was arguable, and a hearing at the Queen’s Bench Division in London was scheduled for January 2017. At the hearing, Counsel put forward the cases for the claimant and defendant respectively; each essentially focusing on v Coventry City Council Ex p. Arrowcroft Group Plc (2001). In summing up, Justice Collins contended that Arrowcroft established that, whilst there was no statutory definition of an MMA, the key principle is that it is not open to the local planning authority to vary a condition if that variation means that the precise terms of the original permission (i.e. the description of development) were changed by it. This reflects the wording of s73 itself, which states only that:

In part, this reflects the retro-fitting exercise undertaken by Government in utilising s73 to regularise the format in which applicants seek post-permission amendments to schemes. In itself, however (and possibly at odds with Planning Practice Guidance), s73 fails to limit the extent of changes sought through MMA applications in terms of how ‘minor’ or indeed ‘substantial’, they are in practice.

In York, the description of development for the original scheme was sufficiently vague, such that no reasonable change to the scale or capacity of the cinema in isolation could negate the appropriate use of s73. This in itself is an important lesson for applicants, and ensuring local planning authorities don’t tamper with a description of development prior to the validation of an application could be key to retaining the future flexibility of a planning permission.

Nevertheless, the whole judicial review process proved invaluable in untangling policy guidance which was admittedly never intended as a purpose-made solution. For planning consultants, this relationship between the legal and planning systems plays an integral role in assuring applicants of the robustness (and indeed lawfulness) of their planning decisions. Without these checks and balances in place, it is arguable that the whole planning process could become less fair and balanced, particularly given the fragmented nature of much current planning policy. For our client, this meant challenging a questionable decision through the courts over a period of six months or so. It is to everyone’s benefit within the planning sector that such a process exists, and can be utilised where necessary.