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Should zoning be introduced in England?

Should zoning be introduced in England?

Giorgio Wetzl 14 May 2018
We can all agree on the fact that the English planning system is a very flexible one; however, in recent times there seems to be a growing trend towards wanting increased certainty from the planning and development process. Examples can be found in the draft London Plan (the ‘fast-track’ application route not requiring viability assessment) or in the draft revised National Planning Policy Framework (promoting testing viability at plan-making stage and not on application), to name just two initiatives in recent consultation documents. This interest in increased certainty in planning derives from different, current challenges, such as the need to increase housing delivery to 300,000 homes/ year by the mid-2020s, or to find new ways to fund affordable housing and infrastructure delivery which are more responsive to the actual needs of communities. In turn, this desire for more certainty translates into proposals for a more robust role for development plan documents (and plan-making in general), as opposed to ad-hoc determination of planning applications. Zoning is sometimes mentioned as an alternative approach to the current planning regime in England that could address these issues, being another way of managing development through planning by providing increased certainty from the outset - especially as zoning systems are already used by many western countries around the world (in different forms).   1. What is zoning? Let’s start with the basics: zoning is a land use planning practice which focuses on ‘dividing’ a local authority’s area into different parts where some uses are permitted, while others are forbidden by right. As the RTPI explains[1]: ‘A complex series of binding rules have to be set down within which development can occur. Such rules can be laid out for existing developed areas, as well as for new development areas. Developers have to comply with the rules, with limited freedom to build or change use, as long as their proposal complies with the rules set out which are legally binding.’ Accordingly, there are two main tools which define each and every zoning system: a zoning map; and legally-binding zoning regulations. The zoning map shows a local authority’s territory ‘covered’ by the different land use zones (‘zones’) that regulate its development. The zones are usually identified at block/neighbourhood level. The zoning regulations set out what is allowed/ prohibited in each zone. They usually are in a text-based document which contains the rules that regulate development in each zone, while also identifying acceptable levels, parameters and mandatory requirements (usually as a range) in terms of density, building height, distance from other plots, and other detailed aspects of development. The combination of the zoning map and regulations set out the different uses (and quantities and parameters of those uses) that are permitted by right in different parts of a town or city. Once the local authority is satisfied that a development complies with the zoning rules, the permitted development can usually proceed following the submission of a construction start notice. Most uses in a zoning system fall (or should fall) within those permitted by right; however, certain zoning systems allow for ‘special’ and/or ‘conditional’ uses, which are exceptions to the zoning rules, and which usually are dealt by imposing stricter controls and/or through standard planning permission routes. Zoning map of town planning area of Tokyo, 1925 (copyright: Norman B. Leventhal Map Center, available on Flickr)   2. There is no one zoning system Another crucial point about zoning, which often causes a lot of confusion, is that it is not a ‘one and only’ system, but rather a variety of different approaches which fall under the same ‘umbrella’. There are different objectives and goals underpinning each and every zoning system, as the urban development goals could be very different in, let’s say, New York City or a Bavarian village. There are many ways of comparing systems, for example by looking at: The institutional tier establishing the zone: is it at national, regional or local level? The nature of the zones (exclusive vs inclusive): are ancillary uses to the main permitted use excluded, or is there an inclusive approach towards minor uses? The relationship between different zones (hierarchical vs non-hierarchical): are uses permitted in the ‘top’ zones allowed in the zones below (hierarchical), or is each zone totally independent and self-defining (non-hierarchical)? The overall number of zones: did the legislator opt for a very detailed and prescriptive approach to zone setting (i.e. a high number of zones), or one where zones are defined by more generic and broader parameters (i.e. fewer zones, with more flexibility)? For example, in most of the United States, Euclidean zoning[2] applies, where zones are decided at local authority level. They are of an exclusive nature, meaning that parameters are very strictly set and generally do not allow complementary uses. US zoning is often also strongly non-hierarchical, meaning that the most protected uses (such as residential) are not allowed in ‘lower’, less protected zones (such as commercial, or light industrial) as a direct consequence of a detailed approach to zone definition and going against a mixed use approach. In terms of the number of zones, this is usually very large due to their detailed nature; in New York City, for example, there are 21 basic Zoning Districts, each having additional sub-categories for specific requirements (which are listed in the 4,300+ page long Zoning Resolution). In Germany, at the other end of the spectrum, zoning frameworks are agreed at federal level, while states (i.e. regions) and local authorities retain powers to make specific provisions for their own areas. The German approach is inclusive, meaning that each zone allows a predominant use (such as residential), while also considering other complimentary uses (such as small shops) as appropriate - effectively supporting a mixed use approach. The German approach is also hierarchical in nature, meaning that ‘higher’ uses (such as residential) are allowed in all the zones, as long as this does not harm the living conditions of residents (in terms of their exposure to externalities, such as noise or air pollution). Finally, in terms of number of zones, the German federal zoning framework (‘Baunutzungsverordnung’ a.k.a. ‘BauNVO’, or Land Utilisitation Ordinance) identifies four basic land use classes, which are then divided into 10 sub-classes. In short, there is no such thing as THE zoning system, but rather a series of zoning systems with their own specific features. Extract from the Berlin Land Use Plan and related key, 2015 (copyright: Senatsverwaltung für Stadtentwicklung und Wohnen, available online)   3. Pros, cons, and potential opportunities of zoning First, it is important to underline that each stakeholder involved in the planning and development process (housebuilders, land promoters, local authorities, communities, etc.) has very different aspirations and goals that they aim to achieve through the planning system. Accordingly, looking at zoning pros and cons really links to which stakeholder’s point of view is being taken. Bearing the above in mind, the main advantage of a zoning planning system seems to be the provision of greater certainty from the outset, through the establishment of a quantum of acceptable permitted development via the zoning map and regulations. This means that the development potential is recognised for each and every parcel of land, without the need to apply for establishing land use, scale etc.; this significantly reduces the scope for any hope value and, as a consequence, tends to fix the overall value of land (if the development potential is fixed, then also the underlying land value will be more certain). On the other hand, this greater degree of certainty is in direct opposition to what many believe is the best feature of the English planning system - its flexibility and adaptability to specific local circumstances at any point in time. Here it is important to underline what should be obvious, that there is a trade-off between certainty and flexibility and that, by definition, zoning is not a flexible planning system (or at least, not as flexible as the English plan-led one). Furthermore, zoning systems require a great many regulations to deal with permitted/forbidden uses in each zone, related parameters and standards, and possible exceptions; this increases the legislative complexity of such systems in a very significant way. As such, the introduction of a zoning system could hardly be coupled with any intention to cut red tape. Other opportunities could arise from the introduction of a zoning system in England however, such as: land swap and trading rights (the transfer of development rights on different plots, to allow higher densities and free up land elsewhere); development premiums (a system of development benefits, where developers could build more if they achieve certain goals and objectives set by local/central Government, such as energy performance, or affordable housing); and land pooling (mostly for urban expansions, where public bodies can drive the process assigning specific development rights to parcels of greenfield land). Extract from the New York City Zoning Map, 2018 (copyright: New York City Planning Department, available online)   4. What could the effects/consequences of zoning in England be? If a zoning system were to be introduced in England, it is naturally difficult to predict ‘on paper’ but let’s look at some potential consequences - here are just four to start with: Shifting local planning department skills and resources: a move towards zoning would certainly shift the local planning authority resource balance towards plan-making, reducing the need for development management (ideally). This would be a key outcome from the main feature of a zoning system, which requires significant upfront plan-making and regulatory work, rather than ad-hoc control in determining planning applications. A new pattern of consultation and engagement: as the expectation would be for fewer planning applications to come forward, in light of the development permitted by the zoning map and regulations, there would be reduced necessity for consultation on individual schemes. On the other hand, this might mean that there would be an increased need for consultation when zoning requirements and allocations are being put together, as well as on design codes. More legal challenges: zoning systems can create controversy over development and land values, as a consequence of sometimes seemingly arbitrary zoning allocations which are then legally-binding. This might lead to an increase in appeals/judicial reviews as landowners/developers might see their sites allocated unfavourably. Parliamentary time: significant parliamentary and government time would be required to repeal/replace current planning legislation, policy and guidance nationally. Illustrative framework and parameters for New York City’s Zone R4, 2018 (copyright: New York City Planning Department, available online)   5. Which are the zoning-type tools currently in the English planning system? A recent study commissioned by the RTPI on planning risk and development[3] highlights how certain planning tools - Permission in Principle in particular - already exist and attempt to provide greater certainty within the English planning system. In addition to the more recent Permissions in Principle and brownfield land registers, there are permitted development rights (PDRs), and local development orders too. However (with the exception of PDRs), the newer zoning-type planning tools need to be effectively tested in practice, and significantly strengthened, before they can become a valid alternative to more long-established (i.e. ‘safe’) planning routes to development delivery. These tools do however already represent a good starting point for testing stakeholders’ appetite for increased certainty in the planning regime, and how much they are willing to accept different trade-offs (more certainty comes at a cost). Illustrative framework and parameters for Berlin’s residential land W1, 2007 (copyright: Senatsverwaltung für Stadtentwicklung und Wohnen, available online)   This broad-brush overview cannot provide any detailed answer as to how zoning could potentially impact the English planning system. However, and in light of the recent policy proposals made by the Government and the Mayor of London (particularly viability assessment at plan-making stage), the time seems right to at least consider alternatives to what many see as a dysfunctional planning system. While a radical overhaul of the existing planning system in England to introduce zoning does not seem either viable or desirable, particularly in light of the many uncertainties and few advantages identifiable, testing alternatives is the normal course of action when wanting to change and improve something. To conclude, there are few points which are worth bearing in mind. First, time matters, and whatever improvements are sought, the timeframe needed to reach the final outcome has to be considered. Secondly and linked, transitional arrangements will be crucial; as much as the final outcome could be the most desirable, due consideration needs to be given to how to get there, and whether the benefits of moving towards zoning are wide enough to counterbalance the inconvenience and unintended consequences of transitioning. And finally, what is wanted from a planning system is ultimately a matter of choice; if the development sector values flexibility, then the current English planning system is probably the right one (though not the ‘perfect’ one); on the other hand, if more certainty is the goal then moving towards a stronger zonal approach could be a way forward. What is clear is that it is not possible to have the certainty that zoning provides, and the flexibility the English planning system allows, both at the same time.   [1] RTPI Consultation Response (2011), How change of use is handled in the planning system[2] From a town named Euclid in Ohio, not in honour of the Greek mathematician[3] RTPI Research Paper (April 2018), Planning Risk and Development: How greater planning certainty would affect residential development  Header image: City of Vancouver, British Columbia: zoning diagram, 1931 (copyright: City of Vancouver Archive's photostream, available on Flickr)

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Draft revised National Planning Policy Framework: a change in narrative
The Government has published its long-awaited draft revision of the National Planning Policy Framework (NPPF). This consolidates a series of proposals that have been made in the last two and half years, and which have been included in various consultation documents. Prime Minister Theresa May’s wide ranging and lengthy speech on the launch of the draft revised NPPF, and the document itself, underline the importance the Government places on seeking to resolve the housing crisis, which had already been emphasised at the 2017 Tory Party conference. As the Prime Minister said: ‘The picture we see today is the result of many failures by many people over many years. Fixing it won’t happen overnight. But the size of the challenge is matched only by the strength of my ambition to tackle it.’ The launch of the draft revised NPPF has been accompanied by the release of a plethora of supporting documents, government responses, and further consultations; of particular note the following have been released: National Planning Policy Framework: consultation proposals and draft text; Supporting housing delivery through developer contributions: consultation; Draft planning practice guidance for viability; Housing Delivery Test: draft measurement rule book; Government responses to the Housing White Paper and the Planning for the Right Homes in the Right Places consultations; and Section 106 planning obligations and the Community Infrastructure Levy in England, 2016 to 2017: report of study. The former two consultations are both set to close on 10 May 2018. As one might expect, and as Ministry of Housing and Local Government officials hinted today, many of the changes proposed in the draft NPPF were expected, and we have already covered what the draft revised NPPF was likely to include on the basis of previous consultations pledges (see our previous blog). We will examine the details, and consider the  potential impacts of the draft’s proposals, in the next weeks and months in the context of other proposed changes, and with an eye to its operation in practice.  For now, we have put together ten points to take away from this raft of publications.   1. Revised framework, new format, new paragraphs The revision has not simply affected the content of the NPPF but also its structure; the document is now set in 17 topic-based chapters which provide a clear overview of the planning framework and the relevance of different policies.  And it is even 5 per cent shorter in terms of its word count (allegedly!). The order of the chapters also better reflects the new priorities of the Government, now very much focused on delivering solutions to the housing crisis through the plan-led system (albeit that Green Belt is chapter 13). All the 2012 NPPF paragraphs numbers (‘para’) have been changed, and this means that we all have to learn new references, on top of the related amended content; a few starting points are set below:   Para 11: presumption in favour of sustainable development; Para 78: encouraging local planning authorities to shorten the time limit for implementation of planning permissions to less than three years; Para 87: sequential test for main town centre uses; Para 123: minimum density for city and town centres (and other parts of the plan area) where there is a shortage of land Para 135-136: exceptional circumstances in the Green Belt; and Para 144: exceptions to inappropriate development in the Green Belt. 2. Housing, housing, housing (but not starter homes) Unsurprisingly, and as expected, the NPPF review is mostly focused on housing, particularly on ways for improving delivery to reach the 300,000 homes per year target, and how to increase affordable housing provision; chapter 5 (para 60-81) deals with the goal of ‘delivering a sufficient supply of homes’. The standardised methodology for calculating local housing need makes its long-anticipated appearance, drawing on the work of the Local Plans Expert Group in March 2016, with details to be set out in the revised PPG (yet to be published). Policies regarding design, densification, affordable home ownership expectations, housing delivery test (with details on the draft methodology published today too), making the most of town centres sites, and small sites are spread across the document. Of note, is a new proposed policy to allow the development of exception sites to provide entry-level housing for first-time buyers (and renters) (para 72); this proposal shows, once more, that starter homes are no longer seen as the solution to the home ownership issue. 3. Stronger plans Plans have been strengthened and provided with an even greater role, further underlining the Government’s intention for the English planning system to be a plan-led one, with a focus on strategic policies. The plan-making chapter (3, paras 15-38) reflects previous announcements and/or changes made through primary legislation, such as for local plan policies to be reviewed ‘at least once every five years’ (para 23), and proposed tweaks to the tests of soundness (para 36). And the duty to co-operate would be bolstered by a requirement for the preparation of statements of common ground, documenting the cross boundary issues to be addressed, and progress in dealing with them. Further details would follow in planning practice guidance. 4. Viability: from application to plan Viability is an area where many stakeholders have called for change, and the Government has responded by revising the viability assessment paragraphs of the current NPPF. Gone is the familiar para 173 on ensuring viability and deliverability, and any reference to ‘competitive returns to a willing land owner and willing developer’  - a very contentious point in the housebuilding industry. New para 58 clarifies that when development proposals accord ‘with all the relevant policies in an up-to-date development plan’ there will be no need to submit a viability assessment. Furthermore, there is proposed to be a (previously consulted on) fundamental shift towards focusing viability assessments at the plan-making stage rather than the decision-making stage, but with the local plan setting out where further (publically available) viability assessments might be required at planning application stage (para 34 and ‘Supporting housing delivery through developer contributions’).   5. Green Belt, protection and brownfield land Green Belt policy (para 132-146) has been tightened further, and previous consultations’ proposals (such as on amending boundaries via Neighbourhood Plans, and offsetting the impact of removing Green Belt land) have been inserted.   Before concluding that ‘exceptional circumstances’ justify the amendment of Green Belt boundaries, local authorities ‘should have examined fully all other reasonable options for meeting [their] identified need for development’ (para 136); reasonable options include consideration of whether the strategy ‘makes as much use as possible’ of suitable brownfield sites and underutilised land, optimises density of development, and demonstrates discussion with neighbouring authorities about unmet need accommodation (through the statement of common ground).  Para 137 would clarify that when the need for Green Belt change has been demonstrated in ‘exceptional circumstances’ (para 136), then plans should firstly consider releasing brownfield land and/or land which is ‘well-served by public transport’, whilst also considering offsetting measures. This tightening has been tempered by the proposal that affordable housing developments on brownfield land, and which would not cause substantial harm to openness and would meet an identified need would not be considered inappropriate development (para 144g); the previous proposal referred to Starter Homes only. Similarly, para 145 provides that material changes of use that would not affect openness and would conflict with Green Belt purposes are not to be considered inappropriate development in the Green Belt.   6. CIL and S106 A whole consultation document on ‘Supporting housing delivery through developer contributions’ has been launched, to deal with reform to section 106 and Community Infrastructure Levy (CIL), which we will review in detail in due course. The objectives of the proposed reform are to provide more clarity and certainty around how developer contributions work, improve their relationship with market signals and changes through time, improve transparency, accelerate development, and allow the introduction of Strategic Infrastructure Tariff by combined authorities (on the London’s MCIL model). Proposals to simplify the process for reviewing CIL charging schedules, lifting section 106 pooling restrictions, allowing CIL charging schedules to be set based on existing use of land, and for setting developer contributions nationally, which would not be negotiated, are among the proposed measures.   7. Is the review just about housing? To a certain extent, yes, the review is almost all about housing (or housing-related issues). However, amendments to non-housing-related sections could have quite an impact in practice. As far as plan-making is concerned, in allocating sites to meet the need for town centre uses it is proposed that policies should look at least ten years ahead but not necessarily over the entire plan period, in view of the difficulties of longer term forecasting. The changes proposed to the sequential test for main town centre uses would allow out-of-centre sites to be considered only if town centre or edge-of-centre locations are not available, or not expected to become available ‘within a reasonable period’ (para 87), acknowledging that a suitable town centre site might be in the development pipeline. The requirement for office development (above a certain floorspace threshold) outside of town centres to undertake and submit an impact assessment is proposed to be removed. Other changes can be found in Chapter 14 ‘Meeting the challenge of climate change, flooding and coastal change’ (para 147-167), as the revised text clarifies (at para 155) that plans should have regard to the cumulative impacts of flood risk, rather than just looking at the flood risk impact of individual development sites.   8. London and Central Government are on the same page The draft London Plan and the revised NPPF have a lot in common, significantly more than one might expect. Policies on small site allocations, benchmark land value calculation methodology (EUV+), viability assessments and affordable housing, higher densities in town/city centres and/or transport hubs are just few of the cases where the two documents are proposing very similar approaches.  A more coordinated approach to planning between Central Government and regional/strategic authorities is a welcome news, particularly in times of significant political divisions within the Country.   9. David Cameron’s planning legacy is (almost completely) gone The planning legacy of David Cameron’s Government has been almost completely lost in just over 18 months; this is the case for starter homes (which have been considerably reduced in importance and joined by ‘entry-level housing’ together with discount market rental properties), promoting estate regeneration, and section 106 dispute resolution, to mention just a few of that Government’s measures. It is clear that Theresa May has sought to change the rhetoric about planning and housing in Government, recognising the complexity of the housing crisis, and providing for wider potential solutions which do not focus on home-ownership alone. And the Prime Minister was clearly reaching out in her speech to the planning profession, conveying the message you are an important part of the solution.   10. What’s next? As said at the beginning of the blog, the Government will seek views on the two proposed consultations until 10 May 2018; the current expectation is for the Government to publish the final revised NPPF ‘before the summer’ (i.e. before Summer Recess, 24 July 2018). Furthermore, we know that the Government intends to consult on further planning reforms, particularly around new permitted development right for upwards extensions, as well as around more effective ways of bringing agricultural land forward for housing. We also know that the transition period for what concerns plan-making would be 6-month long following publication. But there are no proposed transitional arrangements for either the amendments to the soundness test, or for the introduction of statements of common ground. We understand that the Government considers that the Housing White Paper, and other consultations, have provided enough time for local authorities to recognise the direction of travel and prepare for these potential future changes to the revised NPPF. Sajid Javid also announced in his speech today that he will ‘shortly announce an end-to end review of the planning inquiries process’ with the aim to ‘halve the time for an inquiry on housing supply to be determined’ – a highly ambitious target in our view unless there is a very significant injection of resource into the Planning Inspectorate. Changes and proposed amendments to the planning practice guidance, and the outcome of the Letwin’s review on planning permission build out rates, are also expected in the coming weeks and months. The overall impression after the very (very) first read of the documents is that the Government is keen in showing clear leadership, recognising the wide scale of the housing crisis and the lack of any quick fix to this situation. However, some of the proposals seem designed to appeal to the public more than being the consequence of evidence-base reflections. These might have unintended impacts if not carefully monitored or if consultation responses from affected stakeholders are not thoughtfully considered. The wait has been long, but the revised NPPF seems to offer a lot to think about in the coming weeks and months; the planning reform process is far from finished and the Government has clearly acknowledged that. Whether this alone will be enough to change the current situation, increase housing affordability, and achieve and sustain the golden target of 300,000 homes a year, it is clearly too soon to be said. Theresa May’s speech was very important for the planning profession - she wanted to convey that we are very much part of the solution to the housing crisis; unlike the negative picture simplistically painted by Cameron and Osborne prior to the current NPPF. This is another step in the right direction but there is much gathering together of what’s been trailed before. James Fennell, Chief Executive   See the ‘National Planning Policy Framework and developer contribution consultations’ suite of documents here See our other blogs in this series: National Planning Policy Framework review: what to expect? NPPF consultation proposals – what could they mean for town centres? NPPF consultations – what could they mean for designers? Draft NPPF: heritage policy is conserved… Draft NPPF: implications for aviation? Draft NPPF: business as usual? Draft NPPF: more emphasis on healthy and safe communities Lichfields will publish further analysis of the consultation on the draft revised NPPF and its implications. Click here to subscribe for updates.

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