Answering the call of duty on planning

COMMENT It is hard to complain about those provisions of the emerging Levelling-up and Regeneration Bill that seek to reassert the authority of the local plan. Anything that gives primacy to effective plan-making makes immeasurable sense in a concentrated and populated country, with continuous tensions between economic, social and environmental effects.  We can, at times, overly simplify planning to the distribution of housing. The fact is that if we had a better system, it could do so much more. What does the Bill say? While the Bill would require “strong reasons” to depart from a plan, what really matters are the changes that will deliver better plan-making. Those changes are provided at Schedule 7, which restates a slightly diluted version of the current National Planning Policy Framework. The earlier parts of Schedule 7 suggest that examiners will provide “observations and advice” in formulating their local plan and this might read as a softened approach, but further investigation makes clear little will really change.  The more shadowy issue is the uncertainty as to the status of the new overarching “national policies” and that is a hard risk to measure in the abstract. The major change is the removal of the “duty to cooperate” created by the Localism Act 2011 that places a legal duty on local authorities to maximise efficiencies and strategic matters in cross-boundary plan preparation. This follows the short-lived Planning White Paper and, as the supporting policy paper explains, it “will be repealed and replaced with a more flexible alignment test”.  That “alignment test” is provided in Schedule 7 and promotes the provision of “joint spatial development strategy” between (willing and) eligible local authorities. The Bill then provides for the coordination of shared strategic plan-making functions, where they don’t (a) conflict with the strategy, (b) identify sites, or (c) conflict with national policy.  The really interesting aspect is that there is no geographical limit or restraint on the number of local authorities that might share these objectives. This is even more intriguing when considered with the Bill provisions relating to the establishment of combined county authorities and joint plans between multiple authorities. There is real intent in this approach – and in the lure of “deeper devolution deals” and “funding settlements by 2023” – to entice full cooperation. The fall of the duty to cooperate We do, however, need to remind ourselves why the “duty to cooperate” was first introduced. As Greg Clark advised in November 2011, “public bodies should work together on planning issues in ways that reflect genuine shared interests and opportunities”. While many authorities successfully argued that there was a need for local accountability in preference to top-down regional planning, in less than three years, Brandon Lewis had to ”strengthen planning guidance to improve the operation of the duty to cooperate on key housing and planning issues, to ensure that housing and infrastructure needs are identified and planned for”.  The very primal reason for the immediate failure in the “duty” was because, when given the power to determine their own development needs, councillors very quickly realised there was indeed a massive delivery shortfall and they would be voted out for making the challenging decisions to meet those needs. This continued failure is reflected in the increasing instalment of independent members in South East authorities that are elected on an anti-development mandate.  The introduction of the “duty” coincided with major reforms to local government funding that were specifically intended to incentivise housing growth to supplement the funding gap. That wasn’t sufficient incentive at that time and the stinging lesson is that councillors would rather be poor and in power, than watch their successors spend the rewards of their well-intentioned mistakes.  The simple truth is that the failings of the “duty” are simply a symptom, not the cause, of a flawed system. That’s an important distinction, because repealing the “duty” and replacing it with an “alignment test” cannot provide a meaningful solution. It will just create another symptom.  The flaw is that any local determination is now so politically charged that it even threatens the future of established members of parliament. This was reflected in the backbench backlash to the failed White Paper, which was lauded as offering the “big, bold steps so that we… can finally build the homes we all need”.  Tackling the implications It is reasonable to anticipate that the preparation of “joint spatial development strategy” will start – and very possibly stop, even with the incentive of devolution deals. Those authorities that make progress and can ship their development needs elsewhere will move forward in haste. Those that take the burden will likely stumble and fail, save for any reluctant government intervention. Even if the operation of the system is drawn in soft terms, it will have a poor outcome because it will still create immense uncertainty, won’t effectively address cross boundary issues and, most importantly, deliver anything close to the development that is needed.  The only solution is to take the politics out of the numbers.  We need an independent body to assess population and household growth, to consider in and out migration and to provide national figures that can be applied by authorities or by those frustrated with the rate of delivery. That could be an immediate solution to the housing conundrum and, very possibly, it might allow authorities to plan for future economic growth and the other things the system was meant to deliver when first established in 1947.  Stuart Andrews is a partner and head of planning and Matthew Nixon is principle associate, both at Eversheds Sutherland Image: Tomas Anunziata/Pexels