Growth and Infrastructure Bill

Memorandum submitted by Town and Country Planning Association (TCPA) (GIB 05)

1. Overview

1.1 Founded in 1899, the Town and Country Planning Association (TCPA) is the UK’s oldest independent charity focused on planning and sustainable development. Through our work over the last century we have improved both the art and science of planning in the UK and abroad. The TCPA puts social justice and the environment at the heart of policy debate and seeks to inspire Government, industry and campaigners to take a fresh perspective on major issues, including planning policy, housing, regeneration and climate change. Our objectives are to:

· Secure a decent, well designed home for everyone, in a human-scale environment combining the best features of town and country

· Empower people and communities to influence decisions that affect them

· Improve the planning system in accordance with the principles of sustainable development

1.2 The TCPA recognises and supports the Government’s desire for sustainable economic growth. However, the Association has concerns that the Growth and Infrastructure Bill [1] has the potential to undermining public legitimacy without dealing with core barriers to growth which are primarily the availability of credit (both development finance and mortgage availability) and the capacity and skills of the planning service. The TCPA raises four key issues in response to the Bill and latest round of planning reforms:

· The Bill has the affect of shifting powers to the centre of Government. The Bill is radical in principle by, for the first time, bypassing Local Planning Authorities (LPAs) as the first decision maker in planning applications through offering new rights to applicants. The Bill expands the 2008 Planning Act definition of the kinds of projects which can be dealt with by the Secretary of State (SoS) through the major infrastructure regime, a process which effectively bypasses LPAs. In addition, CLG have expanded the ‘Call In’ criteria to support the stated intention in the 6th September Written Statement to use ‘Call In’ powers much more extensively.

· Will the Bill lead to socially inclusive outcomes? The effect of the reforms to Section 106 agreements will be to reduce the quantum of land for affordable housing and risks increased social polarisation on particular sites. At the time of writing this submission the Government has not published evidence as to the extent of the problem caused by the affordable housing requirements on viability. At the recent Communities and Local Government Select Committee inquiry (15th October 2012) Ministers put forward the view that some housing is better than none. The TCPA’s initial view is that this underplays the complexity of viability and that Government investment could de-risk many ‘stuck’ sites while leaving affordable housing agreements intact. The Equalities Statement in the explanatory memorandum does not adequately deal with the long term social consequences of the Bill.

· Will the new measures be used as a last resort? A key justification for the new powers is that they will be used sparingly. However, if the intention is use the powers in exceptional circumstances then the SoS can already use the very extensive existing powers to call in both applications and plans.

· Is planning really the problem? All of these measures assume that the local planning system remains a key barrier to growth. Several select committees have found little evidence to support this view. Recent increases in the time taken to process applications have complex causes not least the total reform of the planning system and reduced LPA resources. The planning system has a complex socio-economic role - part technical, part political - and must mediate all these factors to ensure that public interest is upheld over the long term.

2. Analysis of key planning changes

Option to make application directly to Secretary of State (Clause 1)

2.1 This new measure is the most significant procedural change in the package by creating an opportunity for an applicant to apply to the SoS in the first instance, thus effectively bypassing the LPA. This is not a new appeal right because it applies before any decision of the LPA.

2.2 The new proposed right is qualified in number of important ways. It only applies where a LPA has been designated by the SoS. The grounds for a designation are not on the face of the Bill. This will be subject to separate parallel consultation and is likely to be expressed in policy. The Written Statement (6th September 2012), explanatory memorandum, and evidence by the Planning Minister at the recent select committee hearing (15th October 2012) made clear that such a designation would be made where a LPA’s performance was ‘very poor’ in relation to timeliness of decision or quality of decision making. Such a designation may typically last for a year.

2.3 There is already some debate as to whether a fundamental principle of planning (democratic accountability) has been changed by the provisions of Clause 1. There is a view that Clause 1 simply extends the principle of non determination appeal rights or the kind of directions issues by SoS to refer departure cases to the centre. However, non determination cases are an appeal against the deemed refusal of permission of the LPA. In this case the LPA was the first point of decision and the applicant is in effect appealing against that decision. In relation to directions by the SoS, the SoS has very extensive reserved powers to call in and issue directions, but in relation to departure cases these apply only after the LPA had made a decision on the application in first instance. Article 14 directions issued by the SoS do prevent the LPA from issuing a decision notice for specified period of time or indefinitely while the SoS makes a decision, for example, as to whether to call in an application. Again this does not remove the LPA as the decision maker in the first instance nor does an Article 14 direction on its own remove the LPA as the final decision maker. The point therefore remains that Clause 1 is in practice (and probably in law) a new kind of planning in which the rights of local electorate are removed in the first instance. It is true that some procedural rights, such the rights to make representations, will remain because Clause 1 requires LPAs to continue to carry that function but the substantive right to have decision taken by a democratically elected local authority is removed.

The role of local accountability

2.4 The post 1947 planning system gave planning decisions explicitly to politicians and largely at the local authority level. The Planning Acts have gone on to retain this critical procedural assumption. ‘It [the Planning Act] places the administration of British land use planning entirely in the hands of politicians. It is thus deliberately established as a process of political decision making, through local government agencies under the general supervision of central government. It is "political" in the broadest sense of the word, involving the making of policy and accepting responsibility for its implementation through the accountability of the democratic process. The planning system then, is created as instrument of government, as means of restricting private land use rights in interests of the community as a whole… is a system of politically based decision making which operates within a series of constraints laid down by law.’ (Grant, M Sweet Maxwell 1990). Grant’s conclusion highlights the significance of the measures in Clause 1 which effectively reshape the fundamental principle of local democratic control of planning in the first instance. At the very least it takes the role of central government in ‘oversight’ into new and much more interventionist territory.

2.5 It is not an adequate response to say that such measures would be used in ‘extremis’ since what is at stake is a matter of principle not implementation. In any event once the principle is established the scope could easily be expanded. This point is a directly related to the expansion of the 2008 nationally significant infrastructure projects (NSIP) regime (Clause 21) into areas traditionally dealt with by Town and Country Planning. This has the same effect of removing decisions from local democratic control. This democratic control of planning is one of the founding principles of the 1947 English planning system and should not be overturned without careful consideration of the wider impact on public legitimacy.

2.6 The private sector already has appeal rights which ordinary citizens do not have. The case for a third party right of appeal (first advocated in the Scott report of 1942) has been resisted partly because of the local democratic nature of planning and these measures risk adding to the perceived unfairness of the system.

2.7 The TCPA is strong supporter of the community and neighbourhood planning and during the Second reading debate it was stated that these measures provide new opportunities for communities which counterbalance the increased powers of the SoS. However, the measures in the Bill bypass LPAs and because the output of neighbourhood planning is part of the Local Plan they also effectively bypass the recently introduced neighbourhood planning regime. This is a particular problem is relation Clause 21 because under the 2008 Planning Act regime the SoS does not have the same obligation to consider the Local Plan as a primary consideration.

Judging a poorly performing LPA; the issue of timeliness and quality

2.8 On timeliness the right to appeal already exists for non determination at either 8 weeks for standard applications or 13 weeks for large applications (section 78 (2) 1990 TCP Act) and it is hard to see how this could be further expanded. In any event many extensions to the statutory timescales for determination are often by mutual consent to deal with the complexity of applications.

2.9 The suggestion has been made by the Planning Minister, while giving evidence to the Communities and Local Government Select Committee (15th October 2012) that the number of appeals lost by an LPA would be the test of quality of decision making. Whether we agree with the reasons, many LPAs overturn officer recommendations based on the views of local people. Exercising this democratic right in a way which is unreasonable risks the award of costs and judicial review. Further direct sanctions could be applied to local authorities that would incentivise reasonable behaviour but not remove the decision making locus from the local authority.

Why are planning decisions taking longer?

2.10 There is a clear decline in the speed of the determination of applications summarised in the parliamentary research paper 12/61 beginning in 2010, which marked a reduction in resources to planning services and also the publication of the draft NPPF and Localism Bill. Both of these factors have created uncertainty in the system while their impact beds down. This is likely to be a major factor in the increase the instances of delay which is essentially beyond the control of LPAs [2] .

Changes to Section 106 Agreements

2.11 Clause 5 of the Bill introduces a new section into the 1990 TCP Act to allow developers to apply to the LPA for changes to Section 106 agreements. These changes are focused solely on the affordable housing requirements and allow for the renegotiation of these contracts to modify them or to discharge them completely. The provision also allows for an appeal right if the LPA determine that a Section 106 agreement should continue to have effect.

2.12 Since Section 106 agreements can be focused on a range of infrastructure and other provisions it is interesting that the clause focuses solely on affordable housing. The overall impact depends on the degree to which developers wish to drive down their costs. Since a good deal of renegotiation has taken place on a voluntary basis the measure may have limited effect. The TCPA is concerned that it may even delay delivery while developers await the outcome of the Bill process. The appeal process will take time and involve detailed arguments around residual valuation for particular sites. Significantly the Government has not provided guidance as to how such valuations should take place, relying instead on sector-led guidance from RICS and other bodies.

2.13 Both voluntary and the new proposed legal routes for renegotiating Section 106 agreements will reduce the overall amount of affordable housing. It also reduces the existing amount of allocated land that will be available for affordable housing and most importantly it may lead to the kind of socially polarised communities which the planning system has striven to avoid. In addition, since Section 106 agreements are based on policy in the Local Plan the removal of affordable housing undermines the plan-led system and risks discrediting further the planning process in the eyes of communities who, in some case, may have only agreed to housing on the basis that it secured a significant affordable housing component.

2.14 Viability is the Government’s key argument with the view that unviable sites yield no housing so 30% of nothing is nothing. This is an over-simplified argument because:

· The Government has produced no specific evidence that affordable housing was the key financial factor in viability. Instead they have produced more general figures [3] for sites which are unviable without recognising that this might be caused by a range of factors, such as a transport infrastructure requirement. The TCPA would question whether the ’75,000’ unviable affordable housing figure quoted in the Written Statement (6th September 2012) relates solely to affordable housing issues. The Association has been unable to identify precise figures to back this up.

· Viability changes rapidly and is driven by both site specific issues but also wider macro-economic policy. Developers who bought land unwisely at too higher cost should expect to lower their profit margins which would increase the viability of sites.

· The Government could have used its £300 million (to compensate for losses in affordable housing through Section 106 agreements) to de-risk sites upfront while leaving the social housing requirements on the sites intact. The TCPA asks how many of the 75,000 ‘unviable’ affordable homes could the £300 million positively affect? There is also a question as to where the compensatory social housing will be built and whether these will be genuinely mixed and inclusive communities.

2.15 The prime causes of the poor state of construction are (i) the global economic downturn, (ii) the availability of commercial credit and (iii) the lack of mortgage finance for individuals. While viability can be dealt through a variety of fiscal measures the Government has chosen an approach which risks having significant implications for the creation of balanced and inclusive communities. There is a risk of increased social polarisation as a result of the Section 106 policy and direct impacts on those groups who rely disproportionally on social and affordable housing.

Disposal of public land at less than best value

2.16 Clause 6 allows for the disposal of land at less than best value and this is a positive measure which empowers LPAs to decide how best to facilitate development in their area. As highlighted in the TCPA’s report ‘Creating Garden Cities and Suburbs Today’ (published in May 2012) the Government can play a key role in the assembly and co-ordinated release of public sector land, working in partnership with LPAs and the private sector. It is right that the Government considers how the rules surrounding ‘best value’ might be modified to deal with specific deliverability and viability issues. There may be a case for releasing suitable public sector land at less than market value where this is demonstrably in the public interest. This would open up the prospect of delivering high-quality communities with, for example, a meaningful proportion of decent social and affordable housing and custom/self-build plots. It is still possible to achieve good value for the taxpayer using this mechanism; it is simply that some of the returns to the public purse are generated through the growth of a new community and the wider economic benefits of housing delivery for the nation.


2.17 Clause 7 has potentially big impacts on National Parks not so much in the detail of the measure but on the precedent it sets in the weight to be given to commercial considerations over the key statutory purposes of National Parks and ANOBs. The TCPA is not aware of any evidence that there was problem in the roll-out of broad band technology in these areas. The Association notes that Council for National Parks is strongly objecting to these Clauses

Greens and Commons

2.18 Clause 10 effectively brings to an end the use of such designations where the land is subject to a planning application or a development plan proposal.

Changes in the major infrastructure regime

2.19 The 2008 Planning Act was designed for a specific group of large scale projects relating only to energy, transport, water and waste which were of vital significance to the nation’s infrastructure. The regime is founded on the creation of National Policy Statements (NPS) which have yet to be fully completed. Determination under the 2008 regime effectively bypasses any form of LPA control and decisions are now made by the SoS on recommendation of the Major Infrastructure Planning Unit of the Planning Inspectorate (PINs). The SoS , can by order, amend the detail of any of the specified categories, but cannot add new categories without amending section 14 of the Planning Act 2008.

2.20 Clause 21 of the Bill will add a new category of business and commercial development to the regime but with a significant caveat. While the SoS will have to publish new criteria and thresholds for the kinds of business and commercial development which would qualify under the 2008 Planning Act it will be up the applicant to chose whether they wish to go through the 2008 regime or through the town and country planning Acts in the normal way. As with Clause 1 this creates a new right for applicants in certain circumstances by creating multiple pathways to gaining consent. This does not reflect the drive towards simplification of the planning process.

2. 21 DCLG have offered two examples of the kinds of development which might be drawn into the new regime. These are large scale manufacturing sites and ‘leisure parks’. (Housing has been excluded ). The TCPA is not aware of any evidence of delay to either form of development. The new Land R over engine plant at Wolverhampton is a case of how public investment was backed   by a Regional Development Agency (RDA), local authority cooperation and a timely planning process. The planning system cannot be seen as any form of delay to this successful investment. In the case of Toyota in Derby there were criticisms of local authorities doing too much to facilitate development. The TCPA would que s tion that a leisure park can constitute infrastructure of national importance.

2.22 Four key concerns emerge from the Government’s proposals:

· There does not appear to be an established need to create a new category in the 2008 regime

· Moving such applications from the local planning system into the 2008 regime bypasses local authorities and local democratic accountability which is appears counter-productive since on the whole LPAs are focused on economic development.

· In bypassing local government the proposals also bypass the plan-led system. Under the 2008 regime the SoS has no specific legal duty to consider the local plan in decision making

· The measure creates a system where applicants can use differing consent regimes to gain permission which the 2008 Act was meant to bring to an end.

2.23 The most significant point is that the 2008 regime is ill-suited to dealing with forms of development with complex social/economic impacts on existing communities. Even now the failure of existing NPS to relate well to each other, and not at all to factors like housing, holds back effective strategic planning in England. The 2008 NSIPs regime and 2004/11 town and country planning regime have yet to form a meaningful relationship. While there is a case for such an approach on major energy and transport schemes with regional scale implications, the case for even the very largest form of, for example, retail development being determined by the 2008 regime is questionable.

The importance of an NPS for commercial and business development

2.24 While the SoS is right to say that decisions under the 2008 regime can take place without an NPS being in place it is also the case that the parliamentary scrutiny of NPSs was a key way of ensuring that Government decisions were based on policy which had been tested by parliament. NPSs were also vital in bringing efficiency to the system by setting out clear Government policy which could not be reopened at the examination by any party. This was designed to deal with the experience of the Heathrow T5 inquiry. There is a question therefore as to whether the Government will publish a commercial and business NPS and whether this would be spatially specific. If the answer is no then examinations will have to be based on all relevant national and local policy which would leave policy and decisions open for debate. As a result the process may be uncertain and not provide benefits to the applicant.

2.25 The Government may argue that such a measure will be used only rarely by applicants but this is in contrast to the press notice issued by DCLG on 6th September which stated ‘Thousands of big commercial and residential applications to be directed to a major infrastructure fast track and where councils are poor at processing decisions developers can opt to have their decision taken by the Planning Inspectorate. More applications also will go into a fast track appeal process’ .

3. Opportunities to improve and strengthen the Bill

3.1 During the last decade the TCPA has chosen to engage closely in the planning reform process. That process illustrates the need for strong legislative signals if we are to achieve transformational change on issues such as housing, climate change and equality. The new Growth and Infrastructure Bill is an opportunity to enshrine an effective and open system which allows communities to face up to and tackle the major challenges, as well as deliver the kind of visionary sustainable development which can help deliver a low carbon economy and better places to live.

3.2 The TCPA’s analysis of the Bill has highlighted a number of key concerns about the future direction of the planning system and in particular, the Association thinks the Government should reconsider Clauses 1, 5 and 21. However, the TCPA does believe the Bill could be significantly improved by address the following five themes:

· Statutory Purpose for Planning

· Housing forecasting and delivery

· Climate Change

· Equalities

· Obligations of the Secretary of State

Statutory Purpose

3.3 There has been an active debate over many years about making planning more positive and visionary and less procedural and inward looking. Both in law and practice the planning system would benefit from a clear statutory purpose. This would supplement and ultimately clarify the existing specific duties on planning and provide for a lasting settlement about the direction and value of the system. A specific purpose for planning was set out in early planning legislation (1909 Housing and Town Planning Act) but has subsequently been lost adding to a sense that the system is about process and not outcome focused. Statutory purposes exist in wide range of legal frameworks from National parks to Insolvency law but the planning system remains largely based on procedural rather than outcome duties.

3.4 The purpose of planning should have a vision of bringing together strands of environmental planning, economic and housing development and community empowerment. It should be based on the UK sustainable development approach and recognise the specific role of planning in promoting a pattern of development which is long term, spatial, environmentally, sustainable and socially-just. It should reflect the aspiration of the planning movement and in particular the promotion of civic beauty.

Housing forecasting and delivery

3.5 The TCPA advocated a five point programme to unblock housing delivery in its report ‘Creating Garden Cities and Suburbs Today’ [4] on Garden cities. This focused attention on the need for detailed measures like local delivery vehicles. Efforts to reform and update New Towns legislation, to aid the delivery of LPA-supported large-scale sustainable growth, might have been one way to deal effectively with housing delivery. In addition the 2004 TPC Act contains provisions for the kind of issues to be contained within the survey of Local Plans. These issues have not been updated to explicitly recognise the need to reflect housing needs. Demographic trends are represented but there is no explicit legal obligation to consider housing needs or housing conditions.

Climate Change

3.6 Climate change remains one of our most pressing challenges for the 21st century. Spatial planning can make a major contribution to enabling local solutions on both mitigation and adaptation. Section 182 of the 2008 Planning Act created a new duty on LPAs to contribute to the mitigation and adaptation of climate change by amending Section 19 of the 2004 Act. This only applied to development plan preparation defined in part 2 of the Act. But there is no linkage with the 2008 Climate Change Act which does not apply directly in law to the local authority planning functions. Ensuring a close fit between the Planning Acts to the provisions of the Climate Change Act in plan making would solve this problem and provide legislative force to the provisions of the NPPF (See footnote 16 of the NPPF, published by DCLG in March 2012)


3.7 One of the omissions of planning legislation is a clear obligation to promote social justice through ensuring new development meets the needs of all sections of society. The changes to Section 106 agreements as well the wider impact of benefits reform and housing policy have the capacity to increase social polarisation. The Bill should consider creating obligations on plan makers to consider the needs of all sections of the community and the legal obligations of the Equalities Act.

Obligations of the Secretary of State

3.8 Given the enhanced powers to be exercised by the SoS both under town and country planning and the 2008 major infrastructure regime the Bill should consider the kinds of obligations to which the SoS decision may be subject. One example would be the need under the 2008 regime for PINs and ultimately the SoS to have regard to the Local Plan particular where an NPS had not been published. A second example would be a duty on the SoS to show how the decision was in line with objectives of the Climate Change Act 2008.

4. Conclusion

4.1 This new round of planning reform is being instigated at very short notice and without the clear identification of the problem that policy makers are trying to resolve. The TCPA believes that reform should be based on clear evidence and include the rational and logical re - assessment of the objectives and performance of planning. The latest round of proposals are likely to have substantial and long term impacts on both the planning process and the kinds of inclusive communities that the system aspires to. However, it is less clear that they will meet the Government’s growth agenda.

4.2 Centralis ing decisions for large-scale developments via PINs will change the locus of consent from local to national. But bypassing LPAs will not address the key delivery issues set out in the TCPA ‘Creating Garden Cities and Suburbs Today’ report and sets up a potential legacy of tension between LPAs, communities and developers. The TCPA has advocated the use of existing legislation , such as the New Towns Act, which provides not just a way of managing consent but the outline of delivery vehicles and the financial resources necessary to build high - quality new communities. Overall, the complex mix of deregulation, localism and now centralism risks creating confusion as to the purpose and objectives of the system while not necessarily securing high quality outcomes.

November 2012

[1] Note: other measures such as extending permitted development and the increased use of call in powers do not feature in the Bill and are subject to separate consultation


[2] The Localism Act 2011 was unique in containing no statutory transitional arrangements for the new system. These were eventually published in the non statutory NPPF in March 2012 but remain confusing to many practitioners.

[3] The Housing minster made clear in a written answer that 75,000 figure was based on the Glenigan data base. However this figure relates to housing units stuck due to general viability issues and does not give a break down for the specific impact of affordable housing. At the time of writing CLG have not published any detailed evidence which explores the affordable housing impacts. (Written answer by Mark Prisk MP 17 th October)

[4] TCPA (2012) Creating Garden Cities and Suburbs Today

Prepared 21st November 2012