Abolition of Regional Spatial Strategies

Memorandum from SJ Berwin LLP (ARSS 80)

INTRODUCTION

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.

SUMMARY

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 location.

3 The approach taken to amendment of existing Planning Policy Statements has caused confusion and should be clarified.

4 The RSS revocation caused unnecessary confusion and there should be due consultation in relation to future policy changes.

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 required - there 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.

FOCUS ON HOUSING

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.

IMPLICATIONS OF THE ABOLITION OF REGIONAL HOUSING TARGETS FOR LEVELS OF HOUSING DEVELOPMENT

The Government's thinking in abolishing regional house building targets appears to be as follows (see 6 July 2010 Parliamentary Statement):

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 understand".

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, for example:

PPS1

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".

PPS4

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 appraisal.

(b) in describing the Regional Strategies approach as "top-down" the Government is understating the level of consultation, appraisal and stakeholder participation that took place.

(c) consultation and appraisal was required in any event to comply with the Aarhus Directive and EU Strategic Environmental Assessment Directive.

(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 of re-election.

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 targets - it 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 responses.

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 out?

· 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 plans – and indeed without a requirement for local development plans to be consistent with, and deliverable in the context of, such plans – we 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 policy- and decision-making. We would be interested to understand any formal planning role that is proposed for Local Enterprise Partnerships.

September 2010