Planning matters

It seems a long time ago now that the Government issued the White Paper on planning reform and, as they say, a lot of water has passed under the bridge since then. Many radical new ideas were set out and slowly but surely many seem to be slipping by the wayside – along with Messrs Jenrick and Cummings.

Notwithstanding the current ‘pause’ on planning reforms, Mr Gove has recently assured the MPs on the cross-party housing, communities and local government select committee that there will be some reforms coming forward and he has given us several clues. His priorities seem to include: simplifying plan-making; a greater focus on beauty in new schemes (already in the NPPF); achieving net zero carbon emissions in new housing; giving communities a greater say over development; reforming infrastructure funding and digitalising the planning system.

Many of these would be commendable, but we will clearly need to wait, likely for some time, to see what he has up his sleeve to keep Tory MPs in the south and south east happy, while ensuring that we build the homes that we need, where we need them.

This has led us to go back to when the planning reforms were first announced in August 2020 and to reconsider one of our original, but still pertinent thoughts – ‘do spatial development strategies have a role in a new planning world?’. Being Londoners with a keen interest in the progress of various London Plans, we started with analysis of the SDS for London (the ‘London Plan’). However, there are a number of other spatial development strategies coming forward across the Country and we consider that our findings and thoughts will still be of relevance for planning in our other great conurbations.

Our analysis commenced at the beginning of this year. We first reviewed historical information to identify how spatial planning has evolved in London over the last 45 years (since the Greater London Development Plan) and how the more recent London Plans have performed ‘in numbers’.

As a key second strand, we sought a clearer view of the role of the London Plan over the last 20 years and how this has helped or hindered planning in a major city. To achieve this, we organised workshops with the people who really knew – developers, housebuilders and local planning authorities. We were not only interested in exploring whether spatial planning in London was viewed as working well, but also in examining lessons learned and, whether there could be better way forward.

Our aim was simple – to understand, fully, where we are today and to seek to inform and influence government thinking about the future of spatial planning for our cities and how best this could be delivered.

This blog is the next step towards the completion and publication of an Insight on Spatial Development Strategies.

Our starting point was to consider the previous options for spatial planning in London – what form it has taken and how successful it was. We looked at the GLDP (1976), the role and actions of LPAC, including the ‘1994 Advice’ Notes on strategic planning in London, and the function, role and success of RPG3 (1996).

In summary, our overall conclusions were that these were, generally, ineffective in guiding and, more significantly, in delivering the growth that London needed.

That would explain the birth of the London Plan, as set out in the 1999 GLA Act, through the formation of the GLA and a London Mayor who had responsibility for producing a Spatial Development Strategy (SDS) for London and keeping it under review. The Mayor is required by law to produce a range of Strategies for London, each being consistent with the other, with the SDS acting as the integrating framework for all.

But, as set out in the Act, a key factor is that the London Plan should deal only with matters that are of ‘strategic importance’ to Greater London. This became a key theme of our analysis.

The first London Plan was adopted in 2004, under Mr Livingston, the second iteration came under Mr Johnson in 2011 and now we have the latest (and most controversial) version produced by Mr Khan which was adopted at the beginning of this year. Each Mayor has stamped their own mark on the London Plan and each version has become steadily more complex, more demanding and, as an inevitable consequence, longer. The Inspectors into the current London Plan noted that ‘There is clearly a balance to be struck between allowing for autonomy whilst at the same time setting a strategic direction. The Plan’s policy requirements should therefore be restricted to those that are essential to achieving the Mayor’s strategic vision and objectives’

Having trawled through each and every one of the London Plans many times, and having had to apply the policies on numerous planning applications over the years, we do not need to tell you that these include policies that go way beyond matters of ‘strategic importance’.

However, is this to say that they are ‘bad’ documents …?

… the answer is a categoric ‘no’. But if we were asked the question, ‘could the latest version be improved?’, the answer is an undoubted ‘yes’.

We are not alone in this view.

There are undoubted issues with the London Plan, particularly the current one, and some of these were expressed by the EiP Inspectors and the then SoS, as well as the representatives from the development sector and the local planning authorities that we spoke with. The main issue being that it was too long and detailed and that it has strayed well beyond covering matters that are of ‘strategic importance’. As the Inspectors kindly put it …

In completing their work, the Inspectors concluded that:

‘It is clear from many of the representations made about the Plan, and the discussions that took place throughout the examination, that its length and complexity raise a number of significant issues about the fundamental role and purpose of a spatial development strategy in a three-tiered plan-led system..’ (our emphasis).

But, having said this, within our workshops there was also a lot of positivity about the London Plan, acknowledgement for what it does achieve and the role of the GLA in delivering the development we need. It was considered that:

Overall, our conclusions so far are that the London Plan is an important and necessary document for spatial planning in London and that it has played a fundamental role in bringing forward growth and quality development. To achieve this successfully, there is a need to pull away from seeking a consensus view of local planning authorities across the conurbation.

However, it is back to basics on content, as the clear consensus is that the Plan’s policy requirements should be restricted to those that are essential to achieving the Mayor’s strategic vision and objectives. In our Insight we will set out what we regard, based on the input from those at the sharp end of delivering development in London, to be the key strategic policies that an SDS should focus on and our recommendations for change in content and process.

This is not quite the end of the story as our Insight piece is not yet completed. So, if you have any views on the London Plan and the role of SDS’s generally, that either concur or differ from this blog, please do let us know before Christmas.

Flooding has become one of the biggest dangers to heritage assets in the UK and as more rain is predicted to fall in intense downpours the impacts to the historic environment will be significant. This will undoubtedly have implications for the sustainability of significant heritage assets along with their contribution to local communities and tourism. With the effects of climate change being felt across the country the Government consulted this year on proposals to change England’s planning policies to better respond to flood risks. It was announced planning guidance will be amended to make it clear that all planning applications opposed by the Environment Agency on flood grounds should be referred to the Secretary of State to make the decision. This means that developers who want to build on flood-prone areas will have to demonstrate that their proposals are climate resilient. Owners of listed buildings, who want to make alterations to their properties, should also manage flood risk and establish protective measures while retaining and respecting the existing structure and materials.

In 2018, the Environment Agency identified that flooding posed a significant harmful consequence to cultural heritage. Working with local communities and carrying out a thorough flood risk assessment are therefore important exercises that help developers to understand the potential complexity of delivering their proposals within flood prone areas. Increased protection for heritage assets was spurred by the introduction of The Climate Change Act 2008 and the Flood and Water Management Act 2010 requiring Local Planning Authorities to address flood risk by delegating to them responsibility for flooding from local water courses, with the Environment Agency retaining responsibility for main rivers.

This threat isn’t new however. Historically, our ancestors had a good eye on the landscape locating a number of settlements and structures on topographic highs or by using materials that can tolerate a degree of saturation. Building design from the past includes features such as pitched roofs, which ensure water is shed quickly, preventing it from sitting long enough to penetrate the roof material, whilst wide eaves and cornices keep falling water away from the walls. A study of historic properties at Hebden Bridge in 2017 showed that there were virtually no post-flood problems on buildings that retained most of the historic features and fabric, and the ones that made remedial works such a removing plaster with modern materials experience problems with months of repairs followed by damp issues. The important lesson from the flooding was that the traditionally constructed buildings, maintained and repaired with traditional materials, were far more resilient. Alterations to listed buildings with these components therefore should respect the original function not only for outwardly aesthetic purposes but for their continued use and flood protection elements they offer.

Climate change is not an entirely new issue and our ancestors have been altering the landscape to deal with the effects of flooding since at least the medieval period. Between c. 950–c. 1250 there was the Medieval Warm Period, a time associated with an unusual temperature rise that created unusually wet conditions. The flood defence at Botolph's Bridge, for example, was probably constructed to protect the fertile agricultural land behind it from flood water. Other responses to flooding can also be seen in urbanised environments such as London. Tottenham Court Road for example is a medieval rerouting of the Roman Ermine Street due to its flood prone location.

The modern construction of permanent infrastructure and other tools such as habitat creation, however, can also have negative effects on the historic places. For example, in 2015, the construction of a bund (an embankment to contain flood water) affected the setting of the Grade I listed St Michael’s Church in Mytholmroyd. Unfortunately, despite this defence, the church was inundated during the December floods of 2015. During that flooding event, which was a consequence of the river bursting its banks and increasing groundwater levels, the bund was overtopped, and water rose through the floor of the church. Unfortunately, the bund was very efficient at retaining the flood water in the building, so the church took longer to recover than would have been the case in the absence of that flood defence. Later in 2020, the village experienced further flooding caused by Storm Ciara affecting the church yet again. The church was flooded to a depth of four feet and has been undergoing extensive restoration ever since. All the pews were removed to safe storage and the wooden floor was replaced before the pews were re-installed. The church installed glass panels next to and opposite the church and the river channel has been widened (up to 8m). Rewilding is another example of natural flood management response, such as expanding woodland, reintroducing species that have been absent for a millennia, they usually have an adverse effect on the setting and character of heritage assets.

As demonstrated historic buildings, structures and spaces are vulnerable not only to climate change, but the infrastructure created to protect them. Therefore, consideration should be given to whether its immediate area and whether the dwelling located in a floodplain or an area that is at high risk from flooding. The granting of consent to carry out works to protect a historic structure from flooding will be influenced by the impact of the proposals on the architectural, evidential or historic interest of the site. In some cases, such as Ironbridge, the building and insurance industries’ standard procedures for making buildings habitable again after a flood can be damaging to the special architectural, historic interest. The world heritage site has relied on temporary barriers to protect it during recent devastating floods. Permanent flood alleviation infrastructure has been denied due to its special historical and scientific significance meaning that temporary barriers are a better alternative in order to preserve its special historic and architectural quality. Proposals that affect character and setting are concepts deeply entwined in both planning and heritage protection frameworks. This is important for historic buildings and other features that are located near rivers or on the coast and have close links to the water environment, which will require novel approaches to heritage management. In the past water meadows, for example, have been a feature of many English river valleys and helpfully act as temporary water storage facilities in times of high tide.

Flood defence infrastructure can also contribute to impacts on archaeology through altering ground conditions with potential implications for paleoenvironmental remains. Paleoenvironmental remains are key to understanding past environments and how climate change affected people in the past. Floodplain environments can also illustrate the varied nature of archaeological remains encountered in dynamic coastal and river environments threatened most by the effects of climate change. These remains such as organic deposits, wooden structures and relict channels, tell the story of climate change, flooding and coastal erosion and one that can span hundreds of thousands of years.

The threat of flooding, especially in places which have been on built historic floodplains will continue to become more intense and destructive in the future, and with that many historic places are at risk of flooding as well as coastal change. Heritage professionals are working together to produce effective responses to the impacts of flooding to the historic environment by using lessons from the past to provide holistic approaches to land and building management. Heritage, by default is resilient by the fact it has survived, and we must support the local communities within these rich historic landscapes to adapt to our ever-changing environment.

The Environment Act received Royal Assent on 9 November 2021, albeit very few provisions are yet in force.

The provisions of particular interest to planning are as follows:

• Environmental targets for air quality, water, biodiversity, resource efficiency and waste reduction and soil health and quality.
  
  
• A 'policy statement on environmental principles' explaining how the environmental principles should be interpreted and proportionately applied by Ministers of the Crown (in England) when making policy (except policies for defence, national security and taxation), to which those Ministers must have regard.
  
  
• The establishment of the Office for Environmental Protection, which describes its duty as to "protect and improve the environment by holding government and public authorities to account".
  
  
• Provisions relating to water and waste, which will have particular impacts on those sectors and consequential impacts on their planning.
  
  
• Biodiversity net gain becoming (in due course) a condition of planning permission and a requirement for nationally significant infrastructure projects. And related to this, a system of purchasing biodiversity credits in order that developments can meet the biodiversity net gain objective.
  
  
• Local nature recovery strategies covering the whole of England, with boundaries to be determined by the Environment Secretary.
  
  
• Species conservation strategies and protected site strategies.
  
  
• A power for the Secretary of State for the Environment, Food and Rural Affairs to amend general duties within the Habitats Regulations.
  
  

The environmental targets will be set by regulations, which will specify the standard to be achieved and the date by which it is to be achieved.

DEFRA has consulted on the draft policy statement on environmental principles “which sets out how those five internationally recognised environmental principles should be interpreted and proportionately applied” and a response is now overdue.

In England, sections 22 to 43 and Schedule 1 of the Act make provisions in relation to the Office for Environmental Protection (OEP). Sections 22-24 and Schedule 1, which relate to the establishment of the OEP, came into force on 17 November 2021. However, the OEP has been operating on an interim basis for some time and will continue to do so until its full legal powers are obtained by Regulations, in due course. The OEP anticipates being fully operational from January 2022. 

With regard to the OEP's enforcement function and planning, Lord Goldsmith explained to the Lords during a debate on Commons Reasons and Amendments to the then Bill:

“to the particular importance of prioritising cases that it considers have or may have national implications”.

While the OEP will have discretion to interpret these criteria, setting out its approach in its enforcement policy, it follows in the Government’s view that cases which only have a local concern—for example, the majority of individual planning and environmental permitting decisions—are unlikely to have sufficiently broad or widespread impact to be prioritised. The OEP could pursue such cases if it considers them indicative of a broader or more systemic issue or failure, or if especially serious harm has resulted, or may result, from the potential failure. The OEP, for example, could consider this in relation to the destruction of a nationally important population of a rare and protected species, but this should not be the norm”.

There has been much coverage of the requirement for 10% biodiversity net gain.

This will be introduced when a standard condition in Schedule 14 of the Act (not yet in force) is inserted into the Town and Country Planning Act 1990, within what will be Schedule 7A. The standard condition says that all planning permissions, except those granted by Order, emergency Crown development or other types of development as defined in Regulations, may not be begun unless a biodiversity gain plan has been submitted to, and approved by, the planning authority. The planning authority must approve the biodiversity gain plan if, among other things, it is satisfied that the pre and post development biodiversity values are as stated and that the biodiversity net gain objective is met. Biodiversity value will be calculated by using a metric produced and published by the SoS, which may be revised.

Schedule 7A will say that the biodiversity gain objective is met if the biodiversity value attributable to the development exceeds the pre-development biodiversity value of the onsite habitat by at least the relevant percentage. The relevant percentage is 10%, but this can be amended by Regulations.

Schedule 15 of the Act (also not yet in force), will make amendments to the Planning Act 2008, to mandate for respective biodiversity net gain requirements for Nationally Significant Infrastructure Projects.

In terms of timescales for the introduction of a legal requirement for biodiversity net gain, a written question from Conservative MP Bim Afolami asked about “the potential merits of a pilot scheme to consider the impact of biodiversity net gain in 2022 and 2023 before its full implementation in 2024”.

The Environment Minister, Rebecca Pow MP replied with reference to current policies and discussions with the development sector saying:

“Some aspects of the biodiversity net gain policy were tested, and evaluated, as part of the biodiversity offsetting pilots which took place from 2012 to 2014. We will shortly be consulting formally on more details of biodiversity net gain’s implementation and will consider which components of the approach might benefit from pre-commencement testing as part of this”.

For an overview of biodiversity net gain in current national policy and in forthcoming legislation see Simon Ricketts' blog “Ecology By Numbers: Biodiversity Net Gain In The Environment Bill”. A useful emerging resource is the Planning Advisory Service's page on biodiversity net gain.

For biodiversity net gain and indeed other planning-related provisions that can be adopted into policy, we are likely to see local policies come forward in advance of national requirements. Where there are no local policies, local planning authorities may consider some emerging national policy and law as a material planning consideration, where the approach or direction of travel is clear.

For example, short-lived additions to the Bill made via an amendment in the Lords included an enforcement power to control the felling of trees in England and a new requirement that the Government implements an enhanced protection standard for ancient woodland in England. These proposed provisions were rejected by the House of Commons, but only after the Environment Minister, Rebecca Pow MP, announced:

In the debate that followed, clarification was sought (by John Redwood MP) as to whether this amendment to policy would mean “[…] another HS2-type assault on ancient woodland would not be allowed, whereas the last one was?”

The Environment Minister replied:

It appears that the intention is that all or part of the proposed clause on an enhanced protection standard for ancient woodland will be incorporated into national policy. We may not know whether the buffer zones will be in the policy to be consulted on, until the consultation emerges.

Local planning authorities with ancient woodland may respond in different ways, but some may consider the policy intent above to be considered a material planning consideration, from now on.

With regard Net Zero, the Department for Business, Energy & Industrial Strategy published "Net Zero Strategy: Build Back Greener" (NZS), on 19 October.

Recent Lichfields research "Time to panic? Planning and the climate emergency" discusses the need for the development sector to take a decisive and proactive approach to Net Zero. The NZS will need to be followed up with changes to national planning policy, which the Government says it will do.

The extent to which policies derived from the Environment Act will be included in a revised NPPF and whether Net Zero objectives will truly embedded into policy remains to be seen.

The NZS acknowledges the potential challenges in ensuring that policies are complimentary rather than contradictory:

"Delivery of net zero policies and proposals will need to consider the UK’s other legally binding environmental commitments (for example, new legally binding targets stemming from the Environment Bill), and any trade-offs against these acknowledged and mitigated through careful planning policies and actions can be designed that deliver multiple outcomes in support of the UK’s net zero and 25 Year Environment Plan ambitions.
For instance, the planting of broadleaf trees and restoration of peatland or grassland can deliver carbon sequestration as well as environmental benefits including improved biodiversity and water quality, if done in the right way. Conversely, certain interventions such as planting of maize for biomass or food may risk soil health and water quality. It will be important to assess the wider impacts of proposed net zero actions and seek synergies with environmental ambitions wherever possible, so that the twin challenges of biodiversity loss and climate change are tackled in an efficient way".

The Environment Act 2021

The Environment Act 2021 (Commencement No. 1) Regulations 2021