Housing and Planning Bill

Written evidence submitted by the Town and Country Planning Association (TCPA)


Democratic planning in the public interest is vital to our nation’s future welfare. The objective of this briefing is to highlight the implications of the Housing and Planning Bill and to make clear that it represents a radical change to the local planning system in England. These changes will reinforce the already extensive powers of the Secretary of State and will, along with the extension of permitted development rights, further weaken the local planning system’s ability to deliver high-quality homes in sustainable communities.

Will the Housing and Planning Bill help those most in housing need?

The TCPA supports the Government’s aspiration to build more homes. However, the measures set out in the Housing and Planning Bill are unlikely to solve England’s chronic housing crisis because they fail to back the kind of high-quality and ambitious plans for new places that this nation pioneered. The proposals do not deal with those in greatest housing need. They do not frame a narrative for high-quality, well designed places. The TCPA has proposed a separate set of positive measures to deliver a new generation of Garden Cities. A briefing on how the Housing and Planning Bill could support the delivery of beautifully designed, environmentally resilient and socially inclusive new places in which people will want to live is available from the TCPA. [1]

Where is the public debate about the Bill, and what is the public’s role in the radically new planning system?

It is significant for the parliamentary process that the radical measures contained in the Bill – which will, if fully implemented, bring to an end the post-war discretionary planning system – were not subject to a White Paper nor to any public consultation process. As a result, the public and civil society groups are largely unaware of the implications of the new measures. The only context for the Housing and Planning Bill was set out in the Government’s Productivity Plan, Fixing the Foundations: Creating a More Prosperous Nation, [2] published in July 2015. This document signalled a strong continued commitment to deregulation of the English planning system, based on an analysis that planning is anti-competitive. This analysis is simply wrong. For example, the Government has been presented with extensive evidence of the benefits of planning for long-term place-making, human health and economic efficiency. However, in Fixing the Foundations there is no consideration of the positive benefits of planning for the economy, society and the environment, or of the evidence supporting them. As a result, the reform measures fail to recognise the value of planning as a building block of a civilised democratic society, vital to ensuring that the public accept and consent to more and better homes.

Will further deregulation result in more homes being built?

The description of planning as an ‘obstacle’ [3] to housing development in the Explanatory Memorandum to the Housing and Planning Bill fails to acknowledge that 261,000 [4] units of housing were consented for the year ending March 2015, against a demographic need of at least 240,000 homes per year. During the same period, annual housing completions in England totalled 125,110 (in the 12 months to March 2015). [5] Put simply, 136,000 more homes were consented through the local planning system than were built. Against a backdrop of increased planning consents and continued deregulation of the planning system, housebuilding starts fell by 14% between April and June in 2015. [6] The TCPA is not aware of evidence to suggest that further deregulation of planning will result in more homes being built.

What are the implications of the Bill for place-making?

The Housing and Planning Bill is the main route for implementing further planning deregulation. The Bill has five major implications:

· It misses a major opportunity to create a legacy of high-quality communities for the future, and has no content on place-making or new Garden Cities.

· It introduces very extensive powers for the Secretary of State to introduce zonal planning – a radical reform to the planning system in England.

· It fails to address the key issues relating to compulsory purchase reforms.

· It fails to address the issue of those most in housing need.

· It creates extensive enabling powers for the Secretary of State over a wide range of local authority planning functions.

The Government has also announced further changes to permitted development to make permanent the rights to convert office uses to residential use. It intends to extend these rights to allow for demolition and rebuild as long this is on the same footprint. This measure will leave local communities with less say over how their neighbourhoods are developed and will seriously undermine our ability to create decent homes in vibrant communities. [7]

Are there opportunities to put place-making at the heart of the Bill?

There are a number of key opportunities to put place-making at the heart of the Housing and Planning Bill.

The TCPA will be proposing amendments on:

· adding provisos to enable the development of Garden Cities to the Housing and Planning Bill;

· a statutory purpose for planning; and

· inclusive and accessible homes.

1. Planning reform: the story so far …

In March 2015 the TCPA published its report The Future of Planning and Place-Making, [8] which concluded that the English planning system was not fit for purpose and required urgent attention to secure clear, progressive objectives and a logical structure which reflected, at least in some way, the functional geography of England. The report concluded that England has:

· no effective national spatial planning, with consequent lost opportunities to co-ordinate housing and infrastructure delivery;

· a dysfunctional sub-national planning framework, following the abolition of regional planning and consequent loss of key pertinent data – the ‘duty to co-operate’ [9] (a mechanism which requires local authorities to consult one another), even where it has been successful in its own terms, has not delivered the benefits of strategic planning;

· a non-spatial National Planning Policy Framework (NPPF) which deprioritises place-making, affordability, equality and inclusion and prioritises the needs of developers and landowners;

· a Local Plan process which, because of inherent flaws in national policy, has led to legal uncertainty and increased levels of successful appeals;

· a demoralised and chronically under-resourced planning service; and

· a much less powerful local planning framework as the result of wholesale deregulation of permitted development, which has removed key controls over the urban environment.

Since 2010, the Government has deregulated planning and reduced investment in social and genuinely affordable homes in the hope that the private sector would substantially fill the gap. The results have been deeply disappointing, not only in what has been delivered – as in the example of the extremely small, 13.1 square metre flats for sale in London [10] – but in the widening gap between what is being approved through the planning system and what is actually being built. In the 12 months to March 2015, 261,000 homes were approved in England, [11] but the private sector undertook only 112,270 [12] out of a total of 137,720 starts. Some of these units are approved through permitted development, where planning has no control over quality. It is clear that consent is now being given for more than the estimated demographic need of 240,000 new homes per annum. The private sector is building at roughly around its post-war average rate and may be able to increase output, but only marginally. As these figures illustrate, the number of planning consents is not the prime cause of the dysfunction in our housing model.

2. Devolution and planning?

The potential of Combined Authorities to play a strong role in planning is reflected in all of the 38 current devolution bids. The new devolution arrangements offer an opportunity to fix many of the problems that arise from the dysfunctional ‘duty to co-operate’. However, there are no planning measures in the Housing and Planning Bill that reflect the opportunities presented by the devolution agenda.The Cities and Devolution Bill contains no institutional framework for planning at the Combined Authority level. As a result, questions about accountability, objectives and how a Combined Authority’s strategy will relate to Local Plans are left unanswered. This gives the impression of a system that is confused and complex.

Overall, the English planning system lacks a clear narrative and purpose and risks being both unpopular and increasingly ineffective in its prime role of delivering sustainable development. It is not yet clear how the Government’s new Infrastructure Commission, chaired by Lord Adonis, will deal with the nation’s strategic housing needs; nor is it clear how far the Commission’s remit will focus on housing.

3. Provisions in the bill

The Housing and Planning Bill contains a number of reform measures, including provisions to introduce zonal planning; to extend permitted development; and to increase the powers of intervention for the Secretary of State and widen the remit of the punitive performance regime imposed on local authorities. The TCPA is particularly concerned about five key issues:

· the lack of any ambition for quality place-making and good design;

· the introduction of measures that reduce place-making standards, such as the Starter Homes initiative;

· the introduction of zonal planning and automatic planning permissions;

· the introduction of an element of housing development through the Nationally Significant Infrastructure Projects (NSIP) regime; and

· the failure to deal with compulsory purchase compensation.

Place-making and good design

The TCPA’s recent submission to the House of Lords Select Committee on National Policy for the Built Environment highlighted the lack of focus on high-quality place-making in current policy on the built environment. [1]

The Housing and Planning Bill has no content on quality and design. For example, the proposed change to the process of designating Urban Development Corporations (UDCs) laid out in the Bill fails to place duties on UDCs to deliver high-quality outcomes. The TCPA has set out in detail elsewhere how the Garden City principles could be used to shape a new generation of high-quality inclusive housing. [2]

Starter Homes (Chapter 1)

The Government has made a commitment to bring forward 200,000 starter homes at a 20% discount for young first-time buyers. It will create a special ‘presumption in favour’ of such homes and exempt them from some planning requirements for the Community Infrastructure Level (CIL) and Section 106 planning obligations. However, this measure does not address those in greatest housing need, since a 20% reduction on market price will still leave prices unaffordable for those on average or low incomes in many parts of England. [3] It has not yet been made clear exactly what exemptions from planning requirements will be applied to these starter homes. The provisions in the Housing and Planning Bill create extensive powers for the Secretary of State to set requirements in secondary legislation.

The TCPA is concerned that these homes will neither be affordable nor make a contribution to the supply of genuinely affordable homes available for rent. Will developers bringing forward starter homes will be required to contribute to transport and educational provision or to the complex range of other public goods vital to high-quality place-making? The TCPA calls on Ministers to confirm, on the record, that starter homes will be built to the highest standards and will be at east compliant with all the NPPF requirements. The duty placed on local authorities to promote the supply of starter homes should be amended to ensure that there is at least some safeguards on the quality of design, accessibility and climate change impacts.

Housing and the NSIP regime (Clause 107)

The Nationally Significant Infrastructure Projects (NSIP) regime has already been subjected to extensive reform which has blurred the definition between major infrastructure and local town and country planning. Major renewable energy technologies are to be removed from the regime, but new forms of commercial and leisure development have been included without a supporting National Policy Statement (NPS). This demonstrates a lack of coherence and logic. The Housing and Planning Bill introduces a measure to allow housing, beyond that directly related to the function of the new infrastructure, to be included in an NSIP application. Officials have made clear that this will cover housing developments of up to 500 new homes, but in fact the legislation sets no limit at all, leaving any question of size limit to the discretion of the Secretary of State.

The TCPA has set out a clear view, in its New Towns Act 2015? publication, [4] that the 2008 NSIP process is not an appropriate regime for the approval of scale-housing growth, primarily because the regime was designed specifically with individual pieces of infrastructure in mind and is not best suited for the task of long-term place-making. Using the NSIP process would provide for neither the use of Development Corporations nor an active role for local authorities or communities in the decision-making process. Any attempt to include housing in the 2008 NSIP framework would require a much more detailed investigation, not least concerning the scope and specificity of a Housing NPS that sets out clear place-making standards. Even though limited in scale, any development of 500 homes requires careful planning, and careful thought needs to be given to the relationship between such development and the relevant Local Plan. The TCPA believes that housing should only be included in an NSIP proposal where it has already been allocated in a Local Plan.

Clause 107 of the Housing and Planning Bill should be amended to make clear that ‘Related housing development’ means development which has been allocated in the relevant Development Plan Document. This should be applied to any housing not directly associated with function of the new infrastructure.

Single consent regimes and zonal planning (Clauses 102 and 103)

The Housing and Planning Bill introduces a single consent regime for housing based on a zonal-style system. Both the Productivity Plan and the Minister of State for Housing and Planning’s comments to the Communities and Local Government Select Committee on 7 September 2015 confirm that such proposals are based on US- and European-style zonal planning systems. Clauses 102 and 103 are opaque planning measures; however, the implications could be profound. In essence, the measures enable the Secretary of State to create a Development Order which would allow development ‘in principle’ to be granted to any development allocated in ‘qualifying documents’. A qualifying document is a plan, register or other document prepared by a local authority. This means that sites in a Local Plan, Neighbourhood Plan and the Brownfield Register would be covered by such an Order.

The Explanatory Memorandum to the Housing and Planning Bill indicates that initially the powers will be used for sites listed in the Brownfield Register and for housing land in Local Plans. However, the enabling legislation creates no such limitations and could be used at any time to extend the ‘permission in principle’ to any form of development in Local Plans. Automatic planning permission will be granted in plans with only ‘technical detail’ – which has yet to be defined – reserved for later consideration.

The Government may suggest that this measure is an extension of policy for other forms of Local Development Order. However, this would be wrong for the simple reason that the scale of this measure is immeasurably more extensive than Local Development Orders such as those used to set up Enterprise Zones: Development Orders made under the provisions set out in the Bill would cover all land allocated for homes in Local Plans and the Brownfield Register, with the potential to cover all other forms of development, such as commercial, waste, energy and minerals development. Clauses 102 and 103 of the Housing and Planning Bill amount to the introduction of a new form of local planning, but without public debate or consensus that this is the best approach to delivering the homes and communities that are needed in England.

These proposals raise the follow important issues:

· The British planning system is founded on the discretionary principle, which is its most distinctive feature. Unlike the US zonal system, wherein decisions must be made in line with established ordinances, decision-making in the UK allows planners and politicians to use their discretion to refuse or approve applications based on plan policy. The British system also allows for discretion in assessing the weight of other issues which may not have been foreseen in the plan. This discretion is inherently more flexible and gives politicians and the public a greater opportunity to have their say on detailed concerns, on a case-by-case basis. However, it is also true that this element of discretion can also lead to confusion about whether there is a plan-led system in Britain or not. [5] One key question therefore will be whether a local authority will be able to refuse an application granted in principle in the plan, and if so, on what technical issue. The Housing and Planning Bill implies that decisions on technical detail must normally be made in accordance with the permission in principle. The Housing and Planning Bill does not make clear what is an ‘in principle’ issue and what is a ‘technical issue’. Where the Government draws this line is vital in understanding how much control local communities have over this vital detailed stage of the planning process.

· Ministers have explicitly referenced US- and European-style zonal planning systems as a model. There is some good practice in the US but also many serious problems, not least the use of zonal ordinances for racist purposes, which has resulted in significant Supreme Court judgements and contributed to continued racial segregation in urban areas. [6] There is no policy assessment for the Housing and Planning Bill which deals with these real issues, despite the race equality implications of the proposals for planning and starter homes.

· The adoption of a European-style zonal planning system, along the lines of that operating in the Netherlands, could be potentially positive – but only if the lessons to be learnt from the Dutch system are fully implemented. The idea of permission being granted with the adoption of the plan is a key part of the Dutch system, but so too is the idea of the public sector as lead developers, backed by public sector investment. Significantly, off-plan speculative development does not occur on the same scale because development is genuinely plan-led and changes to the plan must go through a proper process of community engagement. The Housing and Planning Bill does not introduce a European-style zonal planning system: instead, it risks creating a confusing framework. It gives landowners the benefit of permission ‘in principle’ through plan allocation and leaves open all the opportunities to submit applications off-plan. In short, it does nothing to strengthen those aspects of the plan that are of most importance to communities. The result can best be described a ‘policy mash-up’ of US and European zonal systems (which are very different) and the remnants of the British discretionary system. There is a risk that the result will be both confusing (which could create uncertainly for investment) and contentious (which could create opposition from communities and councils).

Could zonal planning work?

The short answer is yes, but only if everyone is given confidence in a genuinely plan-led system. The certainty given to landowners on receiving automatic permission would need to be balanced by the certainty given to communities that development would occur in accordance with the plan and that local areas would not be subjected to endless speculative development applications. This could be achieved by strengthening the weak presumption in favour of the plan set out in Section 8(6) of the Planning and Compulsory Purchase Act 2004.

Compulsory Purchase (Part 7)

The Housing and Planning Bill sets out a number of changes to the compulsory purchase procedure. However, it does not tackle the ‘hope value’ paid to landowners and, from 1961 onwards, enshrined in the Compensation Code, which is the greatest barrier to strategic large-scale housing growth. The TCPA has set out why this is so important to the successful creation of new places in its Parliamentary Briefing Putting Garden Cities at the Heart of the Housing and Planning Bill. [7] The TCPA is calling on Ministers to commit to a fundamental review of the Compensation Code and to take enabling powers to provide a new Compensation Code based on the outcomes of the review.

4. How much is left of the 1947 settlement, and should we care?

The post-war planning settlement, which included the 1947 Town and Country Planning Act, as well as the legislation to create National Parks and New Towns, was implemented by a Labour Government, but it was framed by lawyers and Conservative politicians commissioned by a wartime Coalition Government. Lord Reith, Justice Uthwatt, the Conservative MP Montague Barlow and Lord Justice Scott were all asked to solve crucial problems of how to democratically regulate land use in the public interest.

The 1947 system was a triumph of that cross-party consensus and, despite its erosion, it has served the nation well. Its demise should not be countenanced without very careful thought. The TCPA has always made clear that it has no interest in defending planning or planners for their own sake. The Association is interested in the very best possible outcomes for society as whole, and that is the test it applies to the Housing and Planning Bill. The 1947 Town and Country Planning Act is important because, despite significant modification, it established the following key foundations of effective town planning:

· the nationalisation of development rights to allow for effective land use control;

· comprehensive betterment taxation to deal with values which arise from the grant of planning permission;

· local democratic control;

· comprehensive control of all forms of development (except agricultural land use); and

· discretionary decision-making based on plan policy, but with local politicians having a detailed final say, based on case-by-case expert advice from planners.

Above all, the system reflected the pre-war learning that, to be effective, planning had to be powerful enough to combat the negative externalities of an unregulated land market. Placing the wider public interest, determined through democratic means, over private interests was the bedrock of the system. However, since 2010 the remaining pillars of the system have come under sustained attack:

· The extent of nationalised development rights has been significantly retrenched. Permitted development now applies to change of use of most buildings to housing, as it does to the extension of buildings. Consequently the planning system is demonstrably less powerful, and local government has lost control over major parts of the urban environment.

· The reduction in the power of the planning system has eroded the democratic accountability of local planning, reducing the scope and power of local government over planning issues. There is an increasing trend to impose central planning policy on local planning authorities, as exemplified by the changes to the permitted development rules. The Government’s performance regime will be extended with no commitments to high-quality outcomes of any kind. Instead, there is a greater emphasis on the importance of the speed of the process rather than on meaningful outcomes for society.

· The NPPF viability test enshrines in policy the notion that private interests should outweigh the public interest in the nature and degree of policy that local government can set in Local Plans.

· Discretionary planning has been identified as a clear ‘problem’ and will be revoked for specified forms of development.

If the Government has decided that effective democratic planning, based on the 1947 settlement, is no longer fit for purpose, then there must be a full public debate about an alternative system.

5. Conclusion

Taken together, the Housing and Planning Bill and the Government’s other planning reforms have fundamentally weakened the core public interest objectives of town planning. If the direction of travel continues, there is a risk that planning will become a residualised land use control framework, without clear objectives and lacking key powers.

However, it is what is missing from the Housing and Planning Bill that is most stark. The Bill does not include measures to take advantage of the positive opportunities we have to create high-quality new communities that provide decent homes and meet people’s needs over their whole lifetimes. It does not set out how proper social and transport infrastructure, or the cultural and leisure facilities that make life worth living, are to be provided alongside new homes. It does not support modern methods of construction, which can not only speed up the delivery of new and renewed homes, but also create new jobs and skills while reducing energy demand and so making heating our homes more affordable. The Housing and Planning Bill, in its current form, represents a missed opportunity.

November 2015

[1] Putting Garden Cities at the Heart of the Housing and Planning Bill. Parliamentary Briefing on Amendments to the Housing and Planning Bill. TCPA, Oct. 2015. http://www.tcpa.org.uk/resources.php?action=resource&id=1266

[2] Fixing the Foundations: Creating a More Prosperous Nation. Cm 9098. HM Treasury, Jul. 2015. http://www.gov.uk/government/uploads/system/uploads/attachment_data/file/443897/Productivity_Plan_print.pdf

[3] Housing and Planning Bill: Explanatory Memorandum. Department for Communities and Local Government, Oct. 2015, para. 2. http://www.publications.parliament.uk/pa/bills/cbill/2015-2016/0075/en/16075en.pdf

[4] Planning Applications: January to March 2015 England. Planning Statistical Release. Department for Communities and Local Government, 18 Jun. 2015. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/435809/Planning_Applications_January_to_March_2015.pdf

[5] House Building: March Quarter 2015, England. Department for Communities and Local Government, Aug. 2015. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/428601/House_Building_Release_-_Mar_Qtr_2015.pdf

[6] Y. Farah: ‘Housing starts fall sharply in second quarter’. Building, 21 Aug. 2015. http://www.building.co.uk/housing-starts-fall-sharply-in-second-quarter/5077187.article

[7] Radical deregulation of planning bad news for place-making and local communities’. Press release. TCPA, 12 Oct. 2015. http://www.tcpa.org.uk/resources.php?action=resource&id=1264

[8] The Future of Planning and Place-Making. TCPA, Mar. 2015. http://www.tcpa.org.uk/data/files/Future_of_Planning_embargoed_until_19_March_2015.pdf

[9] The Government’s Planning Practice Guidance defines the ‘duty to co-operate’ thus: ‘It places a legal duty on local planning authorities, county councils in England and public bodies to engage constructively, actively and on an ongoing basis to maximise the effectiveness of Local and Marine Plan preparation in the context of strategic cross boundary matters. The duty to cooperate is not a duty to agree.’ http://planningguidance.planningportal.gov.uk/blog/guidance/duty-to-cooperate/what-is-the-duty-to-cooperate-and-what-does-it-require/

[10] D. Bloom: ‘Budge up! Step inside London’s smallest flats where you can reach the hob from your BED (and they’re being snapped up in hours for hundreds of pounds a month)’. Daily Mail, 15 Jun. 2014. http://www.dailymail.co.uk/news/article-2654275/Budge-Step-inside-Londons-smallest-flats-reach-hob-BED-theyre-snapped-hours-hundreds-pounds-month.html

[11] Planning Applications: January to March 2015 England. Planning Statistical Release. Department for Communities and Local Government, 18 Jun. 2015. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/435809/Planning_Applications_January_to_March_2015.pdf

[12] Live Tables on Housebuilding. Table 208: ‘House building: permanent dwellings started, by tenure and country’. Department for Communities and Local Government. https://www.gov.uk/government/statistical-data-sets/live-tables-on-house-building

[1] TCPA submission to the House of Lords Select Committee on National Policy for the Built Environment. TCPA, Oct. 2015. Available from the TCPA

[2] For further information about Garden Cities see http://www.tcpa.org.uk/pages/garden-cities.html

[3] P. Jefferys: ‘Non starter homes’. Blog entry. Shelter Policy Blog, 26 Aug. 2015. http://blog.shelter.org.uk/2015/08/non-starter-homes/

[4] New Towns Act 2015? TCPA, Feb. 2014. http://www.tcpa.org.uk/data/files/NTA2015.pdf

[5] HM Treasury’s Productivity Plan, Fixing the Foundations, states, at para. 9.14, ‘Previous studies have found that the country’s planning system – where development proposals require individual planning permission and are subject to detailed and discretionary scrutiny – can create the sort of ‘slow, expensive and uncertain process’ that reduces the appetite to build’. Fixing the Foundations: Creating a More Prosperous Nation. Cm 9098. HM Treasury, Jul. 2015. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/443897/Productivity_Plan_print.pdf

[6] In some US cities zoning has been used to keep people of colour out of existing communities. Minorities in the United States are disproportionately on low incomes, and tend to have fewer financial resources to devote to rent or mortgage repayments. Zoning ordinances in suburban communities frequently include provisions that effectively bar the construction of affordable housing. Studies have shown that ‘anti-density zoning’, which calls for large lot sizes for houses, has limited the supply of housing, increased housing prices and reduced the local supply of multi-family units. Other studies have found evidence that anti-Black motivations are driving zoning practices in some communities. See http://www.ctfairhousing.org/wp-content/uploads/CFHC_Zoning_Guide.pdf

[7] Putting Garden Cities at the Heart of the Housing and Planning Bill. Parliamentary Briefing on Amendments to the Housing and Planning Bill. TCPA, Oct. 2015. http://www.tcpa.org.uk/resources.php?action=resource&id=1266

Prepared 17th November 2015