Memorandum by Professor Malcolm Grant
(PGP 64)
THE PLANNING GREEN PAPER
1. I am grateful to the Committee for their
request that I should attend to give oral evidence to this inquiry,
and their invitation to me to submit a brief written statement
in advance. By way of background, I am Pro-Vice Chancellor and
Professor of Land Economy in the University of Cambridge and a
Fellow of Clare College. I am a barrister and for the past 20
years I have been the editor of the Encyclopedia of Planning
Law and Practice. I was also the Specialist Advisor to the
Joint Parliamentary Select Committee that recommended the abolition
of private bill procedure for works projects, and which led to
the Transport and Works Act 1992.
2. This statement covers the Green Paper
itself, and also the consultation papers on planning obligations
and major infrastructure projects.
3. As to the Green Paper, it is remarkable
how far-reaching are its proposals for reform. It challenges many
of the implicit assumptions of the present system. It seeks efficiency
and transparency. But it does not build upon volumes of supporting
analysis, nor does it offer a detailed prescription for change,
nor does it identify clearly the trade-offs it proposes to make
between the currently vested interests to achieve its goals. The
document sells an aspiration, and it tends more to rhetorical
gusto than to intellectual depth. Much of the necessary detail
is simply absent. The Government knows roughly where it wants
to go, but it hasn't yet fashioned the route for getting there.
4. This is a worrying omission. British
planning law is almost wholly procedural. The legislation has
no statement of objectives or purpose. Its function is to allocate
power and to establish procedural rights in decision-making. The
substantive outcomes of planning are the product of the interaction,
through a procedurally moderated process, of various competing
interests. It is, as the House of Lords insisted in the Alconbury
litigation, a politically-based and accountable process, but it
is one in which the political realm is bounded by law. The 1947
reforms shifted the balance of power by subjecting developers'
interests to State regulation, but it also established legal rules
and institutions for the resolution of disputes.
5. There have been several social trends
of the past 50 years which have moulded the present shape of the
planning system. One is the changed relationship between citizens
and the State. We live in a more pluralistic and less ideological
society than that which fashioned the great planning reforms of
1947. People are better educated and more articulate. They are
less willing to accept, as overriding imperatives, assertions
of collective public interest expressed by elected representatives
of national and local government. Another change is that in 1947
the predominant housing tenure was private or public rental; today
it is owner-occupancy, giving people a major financial stake (often
their sole capital investment) in decisions affecting land-use
in their area. The scope of planning has also expanded; it has
assumed new responsibilities in environmental protection and sustainable
development. Unlike 1947, there is no differential tax on development
value in land, so there are large sums at stake for landowners
and developers. This factor is not overlooked in the rhetoric
of objectors.
6. These trends have had a profound effect
on both the ideology and the practical operation of the planning
system. No longer can it be characterised, as it could be through
until the 1960s, simply as a system of government regulation of
private land-use in which neighbours and other third parties have
no legitimate interest. A planning system will only find the public
acceptance that it needs today if it allows properly for the expression
of people's views. If that is to be more than a token exercise,
it will take time. The questions that must be asked are: how much
time, at what stage, through what process, with whose engagement,
to what effect and with what accountability.
7. In the absence of any statutory definition
of the purposes and objectives of planning, process is everything.
Decision-making in planning is in part a political process, and
in part a legal process. It is a political process in that it
is vested in political institutions. But politics is not enough
in itself. The law insists that, in taking planning decisions,
proper account must be taken of all relevant policies and other
material considerations, and that the prescribed procedures must
be followed. So it is not just a matter of political choice. The
process has also a character of adjudication: of listening to
the arguments for and against a proposal, of weighing those arguments
against the evidence, of identifying and applying the appropriate
policies and of giving adequate and defensible reasons for decision.
Not all interests are represented in this way, and Government
policies have the function of representing the interests of those
who have no realistic capacity to participate in the legal process,
such as the homeless, and poorly housed and unemployed.
8. Against this background, the Green Paper
seeks to speed-up planning processes. It proposes a fundamental
departure from the existing dispute resolution mechanisms in plan
making. It suggests that rights to appear at an inquiry or EIP
into objections to proposed policies may be taken away, and replaced
by a guarantee of participatory entitlements defined by a Statement
of Community Involvement to be included in the Local Development
Framework (paragraph 4.22). But it fails to spell out what this
might mean, or the overall nature of the trade-off that is being
proposed. This is between enhancing people's capacity for political
participation, particularly by bringing the opportunity forward
and promoting greater community involvement in the early stages
of plan-making and project design; and removing or reducing rights
of legal process in public local inquiries (paragraph 4.26).
9. When planning applications come forward,
developers will have to complete a model checklist, including
a statement of what consultation has been carried out in accordance
with the Statement of Community Involvement (paragraph 5.8). There
may be some further assistance for Planning Aid. The public may
become entitled to address meetings of local planning committees,
and they will have a statement of reasons for the granting of
planning permission. But they will not have a right of appeal
to the Minister. This suggests that the legally binding processes
for public notification and consultation under existing legislation,
for breach of which a decision may be struck down in an application
for judicial review, would be supplemented by an informal code
whose requirements would be no more than one material consideration
amongst others in decision-making.
10. There are obvious attractions in attempting
to bring public consultation forward in the process. Earlier public
engagement can indeed reduce later conflict, through a better
understanding of local interests and concerns, and through consensus-building.
Yet even with extensive local consultation already in the preparation
of plans, local plan inquiries have a tendency to run and run.
Planning inspectors are, as they must be, meticulous in their
observance of procedural fairness. Nonetheless, the continuance
of these inquiries in their present form would make it impossible
to achieve the regular updating of policies that the Green Paper
proposes. Some policies are already out of date by the time they
are finally approved. The best, in terms of process, has become
the enemy of the good, in terms of useful outcomes.
11. However, since the Human Rights Act
1998, the Government is no longer a free agent in determining
legal process. Whether it could abolish or limit participation
in plan inquiries depends upon the extent to which Action Plans
in practice would predetermine subsequent planning applications.
There will be some aspects of APs, such as a reconfiguration of
the Green Belt, or the adoption of tariffs for planning obligations,
which could have significant impact on property value, and where
a subsequent planning appeal would be unlikely to budge the policy
presumption in the plan. The absence of any hearing at plan-adoption
stage might therefore lead to a finding of non-compliance with
Article 6 taken together with Article 1 of the First Protocol,
of the European Convention. Another legal consideration for the
Government in designing this system will be the forthcoming EU
requirements for strategic environmental assessment.
12. But this does not mean that the current
local plan inquiry process is sacrosanct. The process of examination
in public (EIP), which was introduced in 1972 for structure plans
in order to avoid long-running inquiries, provides a starting
point. There is clearly scope for developing such a process further,
to reflect the Green Paper's vision of a more iterative plan-making
system through regularly reviewed Local Development Frameworks
and Action Plans. No longer should participants and their representatives
be striving towards the unattainable perfection of a stable long-life
plan. If regular monitoring, review and updating were to become
a realistic possibility, a more pragmatic approach would emerge.
13. On planning obligations, the process
proposed by the consultation paper is not clearly spelt out. This
is a document which advances headline ideas, rather than offers
reasoned argument. The overall approach seems to be along the
following lines:
(1) local planning authorities should no
longer be bound by the "necessity" test of circular
1/97 (paragraph 2.3);
(2) tariffs should be broader in their purpose
than simply to defray impacts (paragraph 2.3);
(3) tariffs should not therefore be calculated
in a way comparable to a US-style impact fee (Annex B);
(4) their purpose should instead be to fund
the sustainable development policies of the local planning authority,
including: "housing, transport, regeneration, education,
health, "liveability" and public open space, recreation
and other community benefits" (paragraph 4.5); and
(5) hence schemes which already contribute
to sustainable development in their own right might be exempt
(paragraph 4.9).
14. The consultation paper is completely
silent on the question of the criteria by which tariffs are to
be set. They are not to reintroduce a system of land betterment
taxation (Annex B), but local planning authorities will need to
ensure that they "do not seek to impose an excessive tariff
to choke off development" or to discourage the expansion
of small businesses (paragraph 4.14). There is a general preference
that local planning authorities should set their own tariffs with
government guidance, ie, "advice on how they should approach
the process, whilst still allowing a local decision on the level
of obligations" (Annex B). The only other guidance on how
a tariff might be set (paragraph 4.12) relates to multipliers,
not to method.
15. So what are the substantive options?
The main possibilities which are available to the Government seem
to be:
(1) a tariff derived from rating out a capital
budget, as with US-style impact fees;
(2) a tariff based upon some established
measure(s) of need, as with current affordable housing methodology;
(3) a tariff based on what the market can
bear: at its crudest this would be an ad hoc local facilities
tax, set across a district's area in a manner which reflected
the relative buoyancy of the local economy;
(4) a tariff based on uplift in development
value of land: this would be, in effect, a capital value tax,
set at a local rate;
(5) a tariff differentiated according to
the price signals that the local planning authority wished to
introduce to influence developers' behaviour.
16. Space constraints prevent a detailed
explanation of each of these alternatives from being offered here
(but see the January 2002 Monthly Bulletin of the Encyclopedia
of Planning Law and Practice).
17. The consultation paper indicates that
there would be a wide range of local discretion. There would,
for example, be exemptions. There might be cases where the local
authority "would not wish to pursue" a tariff because
the scheme contributes to sustainable development in its own right
(paragraph 4.9), suggesting that a local planning authority should
be able to discriminate, both in setting tariffs (see paragraph
4.1) and on a case by case basis through negotiation, in favour
of certain types of development, such as that being promoted by
public sector bodies, including hospitals, schools and universities.
18. The requirements of equality and transparency
tug in one direction: all development should pay the tariff at
a standard rate. Unless a matching source of public funding can
be identified, reduction in the liability of one developer must
increase the liability of another. These considerations clearly
underlie section 106 negotiations today, but they require a more
explicit recognition in a tariff system. If there are to be reductions
or waivers, it will be important to ensure that both the criteria
and the machinery are spelt out in the tariff schedule and not
left to case-by-case negotiation.
19. The ideas in the consultation paper
are advanced at too elementary a level to allow proper analysis.
Nonetheless, it is startling that there is no developed discussion
of any process by which the tariffs are to be set. There will
be a need to secure compliance with Convention rights. A taxation
power that operates arbitrarily and in an unforeseeable way will
clearly be challengeable under Article 1 of the First Protocol.
The proposed shift from negotiation (under section 106 as it presently
stands) to tariff involves a move from contract (to which Convention
rights would not ordinarily apply) to taxation: a tariff is a
unilateral requirement by the State; a negotiated agreement is
signed voluntarily (a relative concept in this context) by the
developer or landowner.
20. The mechanism that the consultation
paper proposes for fixing tariffs is that of Supplementary Planning
Guidance or, under the successor arrangements proposed in the
Planning Green Paper, a Local Development Framework (which would
set out the principles and the machinery: see paragraph 4.5),
supplemented by local action plans or topic plans (see paragraph
4.11). For none of these proposals have any detailed procedures
yet been spelt out for rights of consultation, participation,
objection or hearing.
21. On major infrastructure projects, the
new consultation paper builds on earlier proposals by the Government
to introduce a stage of Parliamentary approval. It makes it clear
that Parliament would be invited to do nothing less than approve
the project (the principle of it, the need for it and its location)
(paragraph 20). All that then would be left would be the "detailed
issues of its implementation on the ground". In effect, Parliament
would grant outline planning permission, with any subsequent public
local inquiry limited to issues of detail. It would also provide
confirmation in principle of any requisite compulsory purchase
orders. National policy would thereby be imposed against local
interests.
22. This goes much further than previous
parliamentary engagement in the approval of major projects, such
as Sellafield, Stansted and Sizewell, where the matter was not
brought to Parliament until after the public inquiry stage, in
order to add parliamentary legitimisation to a decision in principle
by the Government in favour of the development proceeding. It
goes further than the procedures by which new towns were designated,
which included provision for public local inquiries.
23. The proposals differ also from current
hybrid bill, private bill, and special parliamentary procedure,
in that the rights of promoter and petitioners in those cases
are prescribed by rules of both Houses, and provision is made
for formal committee hearings. Such a process could only be reconciled
with the Government's ambition for a 60-sittings-days turnaround
if rights of audience were to be tightly contained.
24. There are important considerations also
regarding environmental impact assessment. The consultation paper
implicitly recognises that Parliament's decision would constitute
the grant of development consent for the purposes of the EIA Directive,
and that Parliament would therefore be the "competent authority"
for these purposes; but it misuses the language of the Directive.
The document submitted to Parliament would be an "environmental
statement", not an "environmental impact assessment"
as stated twice in paragraph 28. The environmental impact assessment
is in fact the very process which will fall to Parliament to undertake.
This would require Parliament to ensure, in accordance with Article
6 of Council Directive 85/337 (as amended by 97/11), that consultees
are properly consulted, that the public concerned are given a
reasonable time in order to express an opinion before consent
is granted, and (Article 7) that other Members States affected
by the proposal are, if they wish, also consulted. The results
of consultations, and the information gathered, must be taken
into consideration in the development consent procedure (Article
8).
25. These provisions suggest that, although
EIA processes are more administrative than quasi-judicial, the
UK Government will need to ensure that Parliamentary handling
of such applications observes certain minimum obligations of procedural
fairness. It would be difficult, for example, to reconcile the
discipline of party political whipping of the parliamentary process
with the requirements of the Directive for open-minded consideration
of the EIA information.
26. Moreover, there will be a potential
for challenge under the Human Rights Act 1998, not so much to
the issues of the principle or the need for the proposed development,
as to its proposed location. Where there was landowner opposition,
Parliamentary approval would effect a compulsory acquisition of
the land, such as would normally cause a public Bill to be treated
as hybrid. To dispense with, or significantly curtail, a sufficient
opportunity for a hearing, would not only run counter to a long-running
Parliamentary convention, but also risk infringement of Convention
rights. Yet, as Parliament decided when it enacted the Transport
and Works Act 1992, there is only the most limited capacity within
Parliament for dispute resolution regarding the location of major
works.
27. This is not to say that there can be
no role for Parliamentary involvement in the process. There could
be no objection on these grounds to the Government's proposals
for statements of national policy, and their Parliamentary endorsement.
But to re-establish Parliament as a decision-maker rather than
a policy-maker in planning disputes, is something that requires
great caution.
April 2002
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