Written evidence from SJ Berwin LLP (ARSS
We are a firm of solicitors with significant experience
in the field of planning law and practice. We act for land owners,
developers and funders in relation to major development proposals
including residential and mixed use development. We also act from
time to time for private individuals and interest groups. We believe
that we have a well-rounded understanding of the issues. We wish
to comment on the first four issues raised by the Select Committee.
1. Housing issues cannot be separated from wider
planning, development and sustainability issues.
2. Clarity is needed as to whether the Government
places as much weight as the previous Government did on the importance
of securing new housing, whether it has a figure as to the amount
of additional housing that it regards as necessary or desirable
and as to whether it has any strategic preference as to its strategic
3. The approach taken to amendment of existing
Planning Policy Statements has caused confusion and should be
4. The RSS revocation caused unnecessary confusion
and there should be due consultation in relation to future policy
5. We remain to be convinced that the National
Planning Framework will, if it is to be useful, be any less bureaucratic
than the previous system of RPSs and PPSs.
6 References to "Option 1" housing
numbers require clarification.
7. Further detail of the proposed New Homes Bonus
is requiredthere are a number of unanswered questions.
8. We wish to see progress in relation to the
concept of Infrastructure Plans.
9. We wish to understand any formal planning
role that is proposed for Local Enterprise Partnerships.
Whilst the Committee will be focusing particularly
on the implications for housing of the abolition of the regional
strategies, we note that housing issues cannot be separated from
wider planning, development and sustainability issues, for example
in terms of labour markets and retail catchment areas, the need
to provide appropriately for infrastructure, distribution and
other strategic development and the need for housing development
to come forward within sustainable communities, with an appropriate
mix of uses.
The Government's thinking in abolishing regional
house building targets appears to be as follows (see 6 July 2010
1. They were an "unnecessary bureaucracy".
2. "They alienated people, pitting them
against development instead of encouraging people to build in
their local area".
3. The new Government will make the planning
system "simpler, more efficient and easier for people to
The Government has not indicated that it places less
weight than the previous Government on the importance of securing
new housing and has not indicated that it wishes to see a reduction
in the level of new housing that is achieved. Its proposed National
Planning Framework is intended to set out "national economic
and environmental priorities, and how the planning system will
deliver them". We are not aware of any Government statement
as to the extent that it intends, whether in the National Planning
Framework or elsewhere, to set out a figure for the additional
housing that it regards as necessary or desirable or to express
any strategic preference as to the strategic location for residential
development (north/south, urban/rural, new settlements/urban expansion/urban
infilling) or whether this is for local communities up and down
the country to address and for any strategic need to be met by
individual community expressions of preference. We ask that
the Select Committee seeks clarification on this fundamental issue.
In making limited amendments to PPS3, cancelling
PPS11 and removing references to regional strategies from the
remaining PPSs the Government has retained in current national
policy statements various expressions of such need and expressions
as to the importance of making strategic locational decisions,
Paragraph 13 (iii): "A spatial planning approach
should be at the heart of planning for sustainable development
Paragraph 23 (ii): "Planning Authorities should
"recognise wider sub-regional or national benefits of economic
development and consider these alongside any adverse local impacts".
Paragraph 10: The Government's objectives for planning
include to "reduce the gap in economic growth rates between
regions, promoting regeneration and tackling deprivation".
Either statements such as these, contained in extant
national policy documents following specific amendments by the
Government, are to be relied upon or they are not and should be
cancelled as there will be continuing confusion until the National
Planning Framework is in place (which we understand is not likely
to be until 2012. We ask that the Select Committee seeks clarification
on this fundamental issue.
We also consider that the revocation of the Regional
Strategies on 6 July (heralded by a widely circulated letter the
previous week from the Secretary of State to the Chancellor) without
any detailed replacement policy or guidance, save for the short
"questions and answers" document published on that date
by CLG, was not conducive to a smooth transition from the previous
system to the very different system that is now in effect. The
lack of guidance has led many authorities to cease work on draft
plans or to adopt a different approach to application for planning
permission before them and we do not know whether or not this
was in line with the Government's intentions. It is important
that there is due consultation in relation to future policy changes.
It is correct that the Regional Strategies process
was "bureaucratic". However:
(a) the bureaucracy lay in the extent to which
options and proposals were consulted upon and subjected to sustainability
(b) in describing the Regional Strategies approach
as "top-down" the Government is understating the level
of consultation, appraisal and stakeholder participation that
(c) consultation and appraisal was required in
any event to comply with the Aarhus Directive and EU Strategic
Environmental Assessment Directive; and
(d) we have not yet seen any indication of the
extent of consultation, appraisal and stakeholder participation
that will underpin the National Planning Framework.
The Government has indicated that local authorities
"may base revised housing targets on the level of provision
submitted to the original Regional Spatial Strategy examination
(Option 1 targets), supplemented by more recent information where
appropriate". We find those "option 1" figures
difficult to ascertain in relation to specific local authority
areas. It does not appear to us that there has been any published
assessment as to whether the implications on a national basis
of these figures being adopted or whether by the "invisible
hand" of individual local authority decisions as to local
needs the national picture will be that too few homes will be
built or that development will take place in a spatial pattern
that is economically and/or environmentally unsustainable. We
ask that the Select Committee seeks evidence as to what these
figures amount to on a national basis and seeks clarification
as to whether, if met, they would amount to an adequate response
to the country's housing needs.
The likely effectiveness of the government's plan
to incentivise local communities to accept new housing development,
and the level and nature of the incentives which will need to
be put in place to ensure an adequate long-term supply of housing
There are two separate issues: the extent to which
incentives may lead local authorities to accept new development
and the extent to which incentives may lead local communities
to accept new development.
The degree of influence that financial incentives
will have on local authorities will depend on the level
of incentive, the financial pressure that the authority is facing
due to other funding constraints and the degree to which councillors
consider that allowing development will affect their prospects
Financially secure authorities in areas where further
residential development is essential due to the extent of needs,
increasing unaffordability and pressures on the labour market,
may decide to restrict development to an unreasonable degree.
Undoubtedly resisting development plays well with local electorates.
Without firm targets - whether based on average house building
rates (as was the case with the 1980's "double presumption"
in favour of development where an adequate housing land supply
could not be demonstrated) or along the lines of the previous
Government's regional strategy targetsit is difficult to
see how authorities can be called to account.
On the other hand, there is the possibility that
certain authorities may "go for growth" for financial
reasons by encouraging major development that in environmental,
planning or (in the case of retail development) trade draw terms
is not sensible and without clear national or sub-national policies
that may be difficult to control. We would be concerned at the
quality of planning decisions made by authorities were financial
incentives to be a significant factor in their decision making
eg "We don't like the proposal but we will otherwise need
to make x number of redundancies".
We do not believe that incentives provided to local
authorities will necessarily lead local communities to
accept new development which they would otherwise have opposed.
We believe that there is a degree of cynicism as to whether additional
money going to the local authority is seen as likely to lead to
improvements to the local environment. To the extent that it may
be intended that part of the incentive be directed to the local
community itself we would wish to understand how the "community"
is to be defined and how it can be ensured that monies are spent
efficiently and appropriately. It is also often simplistic to
envisage the "community" either being capable of easy
definition or as necessarily having a uniform stance on any particular
issues. Most development proposals lead to a spectrum of different
We reserve further comment until detail of the proposed
incentives is available. We do however have a number of questions
which we hope the detail will resolve:
will applications submitted before the incentives
arrangements become law potentially qualify authorities for incentives?
If not there is a risk that authorities will seek to persuade
potential applicants to postpone application submission until
the system is up and running;
what will be the anti-avoidance mechanisms to prevent
the unintended outcomes that we have seen with the previous Planning
Delivery Grant Regime? Particularly, what will trigger the incentives:
grant of permission or commencement of development and if the
latter how will phased schemes be dealt with?
how will council tax banding or the appropriate level
of business rates be determined for the purposes of the formula
before the relevant council tax/rating assessments have been carried
if the scheme is intended to be revenue neutral (ie
the winners will be matched by the losers) has modelling been
carried out to ensure that (a) the likely consequence of the regime
is not to remove funding from areas that are subject to lower
development pressure ie to widen the gap between the "richest"
and "poorest" authorities; (b) the level of incentives
proposed in Open Source Planning (six times the level of additional
council tax and/or business rates) has been appropriately costed?
We would also wish to understand what amendments
are proposed to the Community Infrastructure Levy.
The proposed duty to co-operate and a possible
planning role for local enterprise partnerships
A proposed "duty to co-operate" was first
referred to, in Open Source Planning, in the context of a proposal
to "encourage unitary or upper-tier authorities to take a
strategic view and take the lead in compiling Infrastructure Plans,
which will set out how those authorities intend to deliver infrastructure
(eg waste, roads etc) consistent with the local plans adopted
in each area" It was proposed that all local planning authorities
and other public authorities should be subject to a Duty to Co-operate
which will ensure that they consult all the relevant parties,
including all bordering local authorities, in drawing up their
plans including infrastructure plans.
We consider that infrastructure plans will be essential
and are concerned that we have not seen any announcements about
them since the election. There is particularly no reference to
them in CLG's 6 July "questions and answers" document.
Without such plansand indeed without a requirement for
local development plans to be consistent with, and deliverable
in the context of, such planswe believe that there will
be severe problems with infrastructure delivery.
We await details of the proposed duty to co-operate
but will be particularly interested to understand how, and by
whom, the duty may be enforced.
Similarly, as bodies with a more than local focus,
Local Enterprise Partnerships will have an important role in influencing
local policyand decision-making. We would be interested
to understand any formal planning role that is proposed for Local