Planning matters

Update 22 December 2022: The Government has now published a consultation that advances the plan-making proposals in the Bill and the policy paper published in May 2022; Levelling-up and Regeneration Bill: reforms to national planning policy The Planning White Paper (2020) saw the Government propose major changes to the planning system, with a focus on increasing the delivery of new housing, while ensuring new development would be well-designed and accompanied with the necessary infrastructure. Reforming the role and nature of plan-making was a key component to achieving these objectives. As a recap, the White Paper proposed that all local planning authorities (LPAs) must have up to date plans in place, while plans themselves would be shorter, simpler, and more effective. Generic development management policies would be set out in national policy, while the number of homes that LPAs should plan for would also be determined centrally. A zonal approach to planning (of sorts) was also proposed, with all land designated for growth, renewal, or protection. Local plans were to focus on setting out detailed area and site-specific requirements, making use of web-based policy maps with design codes setting out detailed design requirements for key character areas. Almost two years later and after a huge amount of speculation as to the shape and extent of the reforms, the Levelling Up and Regeneration Bill has landed. Further changes to national policy and detailed regulations are expected to come, with an overview of these (relatively substantial) changes set out in an accompanying Further Information policy paper. While the proposals for ‘zoning’ have been abandoned, and the details of a new standard method remain to be seen, many readers will be surprised at how much of the 2020 White Paper may be set to come forward. This blog focuses on the changes to development plans put forward by the Department for Levelling Up, Housing and Communities (DLUHC). Please see our other blogs which cover the other areas of planning reform and regeneration set out within the Bill.  The development plan – a change in status? The Secretary of State will now write National Development Management Policies. The purpose of this is to reduce the size of plans by removing generic development management policies which are largely the same across England, hopefully leading to greater consistency as to how these are applied in practice. The starting point for decision making, s38(6) of the Planning and Compulsory Purchase Act 2004 (PCPA), would be revised under the Bill, fundamentally changing the way planning decisions are made, by inserting the word “strongly”. Where determining applications for planning permission, decision makers would now have to give regard to the “development plan and any national development management policies, unless material considerations strongly indicate otherwise" (our emphasis). The potential policy and legal implications – intended or otherwise - of the introduction of “strongly indicate otherwise” will no doubt be discussed at length during the passage of the Bill. The Bill states that, where there is a conflict between a policy in the local plan with a national development management policy, primacy would be given to the national development management policy. The changes would give greater weight to the development plan than is currently the case, while also immediately elevating the status of national development management policies above other national policy. These national development management policies, as directed by the Secretary of State, would not be a material consideration, but would have the same weight as development plan policy. It is not yet clear what matters these national policies would cover, though heritage, Green Belt, and environmental policies such as Biodiversity Net Gain seem like possible contenders. It is also unclear as to what might be “strong reasons to override the [development] plan” [1]. The Government has said it will set out a new vision for the NPPF, “detailing what a new Framework could look like, and indicating, in broad terms, the types of National Development Management Policy that could accompany it”. This might see the NPPF being broken up into two distinct sections, with one section setting out specific development management policies designated as part of the statutory development plan, and other parts setting out national policy on plan-making, which would remain a material consideration. Getting local plans in place… and keeping them up to date Despite local plans currently being the starting point for decisions, recent research from Lichfields has revealed that only 42% of LPAs outside of London had a fully up-to-date local plan to the end of March 2022. The Government expects that shorter, simpler plans will vastly increase number of LPAs with sound plans in place that are also kept up to date. The Bill’s Further Information policy paper confirms that local plans will need to be prepared within a 30-month timeframe and will be expected to be updated at least every five years. Given the lengthy timescale it currently takes for plans to be prepared (74 LPAs have not adopted a local plan in the ten years since the NPPF was first published in March 2012), many (including the LUHC Select Committee) questioned how achievable this timeframe was when the White Paper was originally published. It may be more realistic than when proposed in the White Paper, because plan-makers will not need to contend with dealing with the zonal system the White Paper proposed. Furthermore, the existing Duty to Cooperate is expected be dropped (more below). In its response to the Select Committee’s report the Future of the Planning System, the Government has said it will also seek to “reduce the evidence burden”, as well as changing the “soundness tests at examination”. The detail of these additional changes is expected to be set out in regulations. No details have yet been published on the new standard method for assessing housing need. Understanding how this will be calculated will be crucial to the success of any future changes to the plan-making process. Allocating land for housing is a fraught process, with arguments over the suitability and deliverability of sites taking a considerable amount of time during preparation and examination of plans. The issue is particularly acute in parts of the country where land is constrained by environmental protections or Green Belt policy, which has often led to stalled plans as a result of difficult local politics, which subsequently effect the delivery of new housing and development (see our recent blog for more detail). Another major change is the Government’s intention to remove the requirement for LPAs to maintain a five-year supply of (deliverable) land for housing, providing the LPAs local plan is kept up to date. As it stands, failure to demonstrate a five year land supply (with an appropriate buffer) has led to the operation of the presumption in favour of sustainable development regardless of the local plan status of the authority, leading to many LPAs with up to date local plans also failing to demonstrate a five year land supply and the presumption applying accordingly.  The Government appears to intend this change as a carrot to encourage LPAs (particularly long term avoiders) to get their plans up to date and adopted quickly. However, many long term avoiders of plan making are Green Belt constrained and without a change to Green Belt policy (including very special circumstances) there remains little incentive for them to adopt a local plan - even with this carrot. Strategic thinking - Joint Spatial Development Strategies As mentioned above, the Government wishes to abandon the Duty to Cooperate, the legal obligation introduced via the Localism Act 2011 that requires cooperation between LPAs. Instead, new powers are proposed that would allow for at least two LPAs to produce a joint spatial strategy. This would have a similar effect to strategic role to the London Plan, albeit across much smaller geographies. Given that the proposed Joint Spatial Development Strategies are voluntary, some will question how many LPAs will choose to adopt this approach, particularly where this may require an LPA to take on the unmet need of its neighbours. That said, in areas with ambitions for growth, this could be an important tool, providing the necessary governance and decision making powers to make difficult choices on infrastructure and other cross-boundary issues - particularly if supported with financial incentives or other powers. Lichfields’ own research on the future role of Spatial Development Strategies (SDS) suggests that the London Plan has played a critical role in leading growth, while helping to secure important decisions on the future direction of travel in the capital. At the same time, the Mayor has also faced accusations of over-reach, with the latest London Plan interfering in matters deemed as non-strategic. Interestingly the Bill appears to have responded to this criticism, with proposed changes to the GLA Act 1999 to make it more explicit in defining the remit of SDSs. Supplementary plans and area-wide design codes The Bill would also provide greater flexibility as to how local policy can be brought forward. The Bill proposes a new power for LPAs to prepare ‘Supplementary Plans’, enabling a lighter touch route for LPAs wishing to introduce policies relating to specific sites, types of development, and for adopting local design codes. During a briefing on the Bill to the planning and development sector by DLUHC, Director of Planning, Simon Gallagher, suggested that this would remove some of the ambiguity of supplementary planning documents, which do not carry the same weight as policy (sometimes leading to confusion as to what these documents can and cannot do). This system would allow policies for specific sites or types of development to be brought forward more swiftly than at present. Supplementary plans would go through a process of independent examination which would be undertaken via written representations, though the Bill confirms that a hearing may be appropriate in certain circumstances. The Bill also proposes that LPAs will be required to produce area-wide design codes; these supplementary plans would allow authorities to introduce design codes that set out the “requirements with respect to design that relate to development, or development of a particular description”. In its response to the Select Committee report on Planning Reform, the Government stated these will “act as a framework for subsequent detailed design codes, prepared for specific areas or sites and led either by the local planning authority, neighbourhood planning groups or by developers as part of planning applications.” The 2021 changes to the NPPF have already sought to encourage LPAs (as well as communities and developers) to produce design codes in their areas. Codes and other supplementary guidance are currently discretionary, and the pilot design codes being brought forward with support from the Office for Place predominantly focus on specific areas within an authority, such as urban extensions, neighbourhoods undergoing significant change, and strategic regeneration sites. Area-wide codes would represent a considerable step-change. Design codes would be based on the existing framework set out in the National Model Design Code (NMDC). This provides a template to support LPAs in producing their own codes, relating to area-wide guidance, alongside instructions for specific area/development types. Figure 1.  example of area-wide guidance in the NMDC. (P32) Local authorities may wish to set more detailed area-specific parameters on matters such as building heights, density and materials, though these would likely be targeted at specific character areas rather than being authority-wide (e.g. high-rise, town centre, urban neighbourhoods, industrial areas, suburban). The changes proposed would represent a definite shift in the range of work undertaken by many LPAs, and would likely require some in-house design capacity and expertise. Previous research from Public Practice suggested that 80% of LPAs considered they did not have the in-house capacity or skills required to deliver the White Paper proposals, while the average estimated costs of preparing, consulting on and adopting a design code for an area of approximately 1ooo homes was found to be £138,636. Where local authorities fail to produce area-wide codes, provisions in the Bill allow for the Secretary of State to intervene and direct the authority to comply with any required steps. Neighbourhood Plans (and Street Votes?) Neighbourhood Plans would be retained under the Bill, though amendments proposed to S38B of the PCPA provide further detail on the scope of what neighbourhood plans can include. This includes matters such as the level of affordable housing, infrastructure requirements, as well as the design and characteristics of development. The Bill would also seek to prevent neighbourhood plans from restricting housing related development, where this is proposed in a wider local development plan. The Bill also proposes a new tool for neighbourhood planners, allowing groups to produce a ‘neighbourhood priorities statement’ (NPS). The Department has stated that this “is designed to be a more accessible, cheaper and faster way for communities to get involved in neighbourhood planning, particularly in areas that currently have low levels of take-up. NPSs will allow communities to identify key priorities and preferences for their area and may potentially act as a launchpad to preparing a full neighbourhood plan, design code or another community initiative. NPSs would also be used as a formal input to the local plan process with local authorities required to consider them”. The most hyped element of the reform by the media was no doubt the new ‘Street Vote’ provision. This is intended to “allow residents to propose development on their street and hold a vote to determine whether it should be given planning permission”, this would allow for the intensification of existing residential areas, with proponents suggesting this would be based on locally popular design. Given its fanfare, there is surprisingly little to say on this measure yet, with the explanatory note to the Bill stating that the clause is designed as a placeholder for a more substantive clause which may follow later. An existing Streets Vote Bill had already been put before Parliament as a Private Members Bill, on the back of the Policy Exchange report Strong Suburbs; both provide an idea of what is likely to come. ­Initial thoughts While the Government is yet to publish a formal response the White Paper consultation (it is imminent), it is clear that it has listened to its own backbenchers at least. Planning will continue to be presented as a local affair, and there is now greater expectation that decisions on new development will be plan-led. However, until the scope and nature of National Development Management Policies is known, the extent to which local plans are truly local, beyond site allocations, design codes and detailed area specific polies, will not be known either. Plans will be simpler and shorter, with the process of producing them to be expedited. The proposals would also provide additional flexibility as to how new policies are brought forward, while also granting additional strategic powers where groups of LPAs consider this expedient. These are all commendable objectives that would go some way in making the system more user-friendly. There are a lot of moving parts, however, particularly when other reforms such as the infrastructure levy and the devolution provisions are added to the mix. Previous experience of planning reform has shown there is a real risk of inertia as LPAs and other parties get to grips with the changes. Hopefully a better funded system (through the proposed increase in planning application fees) may assuage this but, by itself, that is unlikely to be enough for LPAs to resource the suite of changes required. Further, many will rightly question whether the changes have let some authorities off the hook, enabling them to avoid the difficult decision of allocating sufficient land to meet local needs. You will hear little on housing numbers in any recent statements from Gove, and perhaps this is part of the Government’s strategy. In any event, the changes are probably more than a year away. The Bill will first need to make its passage through Parliament before being enacted – the Government is targeting Royal Assent by the year end or early next. Many of the provisions will also require changes to national policy and additional regulations brought forward via secondary legislation, as such there is still time for things to change considerably.    [1] As referred to at para 50 of the Explanatory Notes to the Bill HM Government, Levelling Up and Regeneration Bill, Further Information policy paper    

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 zones: 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)