Planning white paper: Times are changing

The long-awaited planning white paper landed with a bang last week and has already caused quite a commotion. Major changes to the local plan format and process are proposed, along with greater public engagement; digitalisation; new design codes; and a fast-track approval system for “beautiful” development. Despite the raging temperatures outside, the reforms have received a fairly cool response so far, with many suggesting that democracy is being diminished for the sake of speed, and that the proposals would create more, rather than less, complexity. It’s easy to forget that the paper does not purport to have all the answers and detail. It presents alternative suggestions on ways to improve the planning system and promises further consultation if proposals are carried forward. Three topics in particular have generated much fanfare in the press and on social media: zoning, planning gain and resourcing. There has been some misunderstanding about these three planning myths. Here’s our take. Is zoning on the table? It is true that you won’t find the word “zoning” anywhere in the white paper. Members of the expert task force who helped to write the paper are adamant that the new “Growth, Renewal and Protected” categorisations do not constitute a new zoning system, but are simply new local plan designations. If it’s not zoning, what exactly is it? Growth (and possibly also renewal areas) would set out the type of uses which would benefit from automatic outline permission, provided that the development fits within the specified parameters. If this new approach is to really make a difference, the parameters will need to be detailed. For example, height, massing and density ranges will need to be set alongside an illustrative masterplan so that applicants have a sufficient degree of certainty when submitting their reserved matters application. This will need to work with the design code so that not too much detail is left to be decided at reserved matters stage, making the application process genuinely quick, clear and simple. Otherwise, only a “bare outline” permission will be achieved, which would not give certainty or a truly bankable consent. Front-loading the plan-making process is needed to make the new approach work and that, surely, is zoning. So long section 106? At first glance (or even first thorough read), it looks as though section 106 and the community infrastructure levy will be replaced by a new infrastructure levy. The levy will fund the infrastructure needed for the development as well as affordable housing. Consider then, footnote 16. This concedes that there is still a role for section 106 agreements in securing covenants on the land, even if the calculation and collection of contributions is made via the new levy. This makes a lot of sense to us. Without section 106 agreements, how are site-specific off-site works which are necessary for the success of the development going to be secured? By simply paying the levy, how can a developer ensure that they are in place before occupation? Take a new highway access for a housing scheme for example: what happens if the council hasn’t built the new access before the residents are ready to move in? This has a knock-on effect on value, and lack of control is bound to be a concern for applicants. Section 106, although not perfect, provides a well-established solution to these issues and ensures long-term commitments by automatically binding future owners and occupiers. Who funds the changes? The proposed changes will require a mammoth amount of resource. Yes, the government plans to put a new resourcing and skills framework in place and, yes, central funding will take place. But it is clear who will be expected to “principally” fund the new planning system: landowners and developers. This will be through the new infrastructure levy and increased planning fees. There has also been the suggestion in wider discussions that landowners and developers will pay for a seat at the plan-making table. Creating such a direct link between payment and a plan allocation would be a brave move. If a local plan allocation results in automatic outline permission, some developers may be happy to pay the price, but we assume there’ll be no refunds if they are unsuccessful or if the ultimate allocation is not viable. Where there’s a will, there’s a way So we’re really just at the start of our journey of reform. If the past six months has taught us anything, it’s that we can adapt when we need to. The technology is ready and we are braced for change. What’s important now is that we feed into the discussions in a solutions-focused way and work together to ensure that we create a system that works for all and, crucially, allows us to protect the environment while delivering quality development. Planning white paper: five key changes Automatic outline permission for “growth” areas and “beautiful” schemes Local plan adoption in a third of the time it currently takes, containing rules not policy Nationally set new infrastructure levy, for infrastructure and affordable housing Design codes created by local people at the plan-making stage Replacing paper with code: interactive maps, modelling and text messaging Claire Dutch, is co-head of planning and Kathryn Hampton is a senior expertise lawyer at Ashurst LLP Picture © ANDY RAIN/EPA-EFE/Shutterstock