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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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Take a chance on me: what we know about permission in principle on application
Update: 15 June 2018: The Government has published updated guidance on permission in principle – notably the application procedures for PiP and technical details consent.  The complete up-to-date guidance is available here. On 1 June 2018 a new route for obtaining planning permission via an application will become available for most small, housing-led developments: an application for permission in principle (PIP) followed by an application for technical details consent (TDC). On that day, the Town and Country Planning (Permission in Principle) (Amendment) Order 2017(‘PIP Amendment Order’) will come into force. And by that time, the PIP and TDC route will have been in primary legislation for over two years, and PIP via local authority brownfield land registers will have been available for several months, so one would hope it will not be a completely new concept for the property sector – and particularly small builders - to grapple with and consider using. Notwithstanding this hoped-for familiarity with PIPs, the new application route is one of the most significant changes to the way planning permission may be achieved since outline planning applications were introduced almost 60 years ago. Our May 2016 Guide to PIPsprovides the background, and our subsequent March 2017 Guide(updated in January 2018) explains how PIPs can be granted via brownfield land registers. Of the three routes to PIP that are provided by s59A of the Town and Country Planning Act 1990, only one is already available a present: permission in principle granted via Part 2 of the brownfield land register. The three routes to PIP will be mutually exclusive; i.e. PIP on application will be available to any site that might accommodate minor housing-led development, provided the development is not habitats development, EIA development or major development (as defined in the PIP Amendment Order). It is not the case that it will be available only to sites in Part 1 of a brownfield land register (sites in Part 2 already have PIP), or (in future) to sites granted PIP via a local plan allocation or a neighbourhood plan allocation (these too will already have PIP). Small sites only Applications for PIP for minor developments (of nine residential units or less, with less than 1000sqm of commercial floorspace, and/or on a site of less than 1ha), the ‘main purpose’ of which is housing development, may be submitted to local planning authorities (LPAs) from 1 June 2018 onwards. ‘Main purpose’ is not defined in the amendment Order; perhaps guidance will indicate that it will relate to the site area proposed for housing, as compared to other proposed uses.  Applications for PIP cannot be made for major, ‘habitats’, householder, or Schedule 1 EIA development. PIP can be granted for Schedule 2 EIA development, providing that a screening opinion that the proposal is not EIA development has been adopted or made. In for a penny… The premise for PIP via the application route is slightly unusual; essentially it is presented as a cheaper way for those taking a chance on smaller (more risky?) sites to establish whether a site is suitable for new homes, or not. According to the Explanatory Memorandum (EM) to the Amendment Order 2017: …we [the Government] estimate a developer of a four dwelling site that chooses to take up the new option to apply for permission in principle will incur an additional cost of £800 in an instance where permission in principle is granted but will save on average £22,000 in an instance where permission in principle is refused. Pre-application advice is the current process for a developer trying to reduce planning risk, which is effectively the benefit PIP provides. Pre-application advice in respect of a PIP on application would add another layer of costs, and does not appear to be envisaged by Government in the estimates above. The Government will provide guidance for PIP applications, including the information to be submitted with an application. And the EM explains that LPAs will be supported by an ‘active programme of continuous engagement to coincide with the coming into force of the Order’. Fees The Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2017 - in force from 17 January 2018 – introduce a fee for PIP of £402 per 0.1 of a hectare. This fee will apply to PIP proposals falling within Categories 1-3 of the amendment Fee Regulations: 1. erection of houses; 2. erection of buildings (other than houses, agricultural buildings, glasshouses, plant or machinery and ‘other operations’); and 3. erection of agricultural buildings. It is not clear why the Fee Regulations refer only to these three categories, and why material change of use in particular (categories 11, 12 and 13) is not directly referred to, given that PIP may be sought for a change of use. The fee for non-material amendments to a PIP or TDC is/will be £195. The fee exemptions that will apply to a second application for PIP relating to development on the same site as a first application, and following withdrawal of an application or refusal, are very similar to the exemptions of this type that apply to planning and reserved matters approval applications (see Fee Regulations 8 and 9). An exemption might apply to a TDC application where both the first and second applications were TDC applications (i.e. not to a TDC application that follows the withdrawal or refusal of an application for planning permission that was not a TDC application). The Planning Guarantee of a 26 week determination period (see Fee Regulation 9A) will apply to PIP on application and TDC. Procedure An application for PIP will have to be made on a form published by the Secretary of State (or a form to substantially the same effect). If a decision is not made within 5 weeks of receipt of a valid application, and no extension of time has been agreed, the applicant may appeal to the Secretary of State for non-determination. We can see no reason why from 1 June this year an application for PIP could not be submitted in respect of a site, or part of a site that is listed in Part 1 of a brownfield land register, and for a different range of units/development to that described in Part 1, providing that all the requirements on site size, number of units etc are met. There will be a right of appeal against refusal of an application for a PIP (but not for refusal to grant PIP via brownfield land register, or via a development plan allocation) (s78(1)(aa)). Once a PIP has been granted, it ‘ceases to have effect’ after three years, unless a longer or shorter time limit is directed on the decision notice. TDC relating to the proposed development must be granted prior to the expiry of the PIP and must be determined in accordance with the PIP unless three years have passed since the PIP came into effect and material circumstances have changed since that time. A TDC will be subject to a standard time limit of three years (as per s91 of the Town and Country Planning Act 1990, as amended), unless a longer or shorter period is imposed by the LPA. As noted above, a non-material amendment may be sought to a PIP or TDC. A minor material amendment, achieved via a s73 application, is possible for a TDC, because it is a planning permission. A PIP is not a planning permission (it is the stage before planning permission), and therefore a s73 planning application may not be made (s73 applies ‘to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted’).  In our view, Pressland v Hammersmith and Fulham LBC (2016), which confirmed the scope of s73, does not assist. In Pressland, it was concluded that conditions attached to a planning permission can be amended however that planning permission was achieved, as can conditions attached to approvals required by a condition of planning permission. Any conditions attached to a PIP will be conditions required of a planning permission i.e. for requirements at TDC application stage. Time for knowledge sharing and best practice? The PIP Amendment Order was originally intended to come into force on the same day as the amendment Fee Regulations, “so that LPAs can charge a fee for PIP applications” (see footnote 1 on page 9 of the Explanatory Memorandum of the draft amendment Fee Regulations). The “active programme of continuous engagement” referred to in the EM to the made Order is probably part of the reason for a delay. Hopefully it is a delay that will initiate discussion and then lead to clarity for all parties on PIP application procedure and process, ready for 1 June.

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