Housing and Planning Bill technical details

For those with about 5 hours to spare and not wanting to spend these reading my blog posts you could amuse yourselves by going to
https://www.gov.uk/government/consultations/implementation-of-planning-changes-technical-consultation
and helping the Government sort out the mess that will be created by the Housing and Planning Bill when it becomes law later in the year.

This consultation has been designed by somebody with far more knowledge and understanding of the planning system than those who drafted the Bill itself.  The questions reveal the complexities in the system all of which have the potential for unintended and unfortunate consequences.  If the Bill was certain in its outcomes (as legislation should be?) there should be no need to consider the technical details  in such depth. None of the relies will be considered by Parliament.

This consultation reminds me of the very serious problems that the planning system should be addressing; desperately unfair distribution of housing and its unaffordability, climate change, local food systems, excessive mobility and limited accessibility, inflated profits from landownership and declining public services and infrastructure.  All very big problems and all untouched by the major piece of legislation from the 2015 to 2020 Government. I suppose we should not expect much better from legislation drafted by the Treasury but very galling for about 24,000 qualified planners having to learn, understand and apply new rules that appear to be counter-intuitive and counter-productive.

And who will be blamed when these changes do not meet their declared purpose? and will the Government introduce more changes any more likely to have beneficial effects?

I was told by somebody who spends their life studying the planning system that this Government is deliberately destroying the system by increasing the incoherence and creating chaos. Whilst this is bound to be the effect of the proposed changes,  I can't see this logic in that there will have to be a planning system of some description and even the most stupid or clever government minister would want a system that could deliver on their agenda rather than fall apart. Or am I being naive and the whole caboodle will be privatised...

Development Plans must mitigate against climate change

I wonder how many people involved in the planning system are aware of the insertion by the Planning Act 2008 of  182 .Development plan documents: climate change policies into 19 of PCPA 2004 (preparation of local development documents) after subsection (1), the following apparently innocuous clause?

“(1A)Development plan documents must (taken as a whole) include policies designed to secure that the development and use of land in the local planning authority's area contribute to the mitigation of, and adaptation to, climate change.”(emphasis added)

I1S. 182 in force at 6.4.2009 for E.W. by S.I. 2009/400, art. 3(e)

http://www.legislation.gov.uk/ukpga/2008/29/section/182

I think that we were excused in overlooking this provision (and I include myself) as this did not prove very easy to find and does not appear to have been applied by those making plans or those engaged in their examination.  I don't think that the examiner to whom I have recently been giving evidence (who seems to be very experienced and knowledgeable) had ever had to consider whether a local plan had been compliant with this legal requirement (note the word "must"). It was disappointing that he seemed to be looking for wriggle room in respect of s39(2) of the same Act despite a clear absence of evidence that the Plan in question would contribute to the achievement of sustainable development.

In this recent case the council's sustainability appraisal had noted that almost all the policies and proposals would have 'minor negative' impacts in respect of carbon emissions with no 'major positive' to result in mitigation of any kind, let alone the level required by the Climate Change Act  and 4th/5th carbon budgets.  Why should there be any concern that the inspector will find some line of reasoning to argue that a development plan that proposes 40% growth and jobs implying probably the same growth in carbon emissions (if not more, due to added  congestion on the roads) would be  'sound'?  

The first reason is that, in the absence of an adopted plan, there is a concern that unplanned for sites will continue to be permitted in the absence of a 5 year land supply.  Whilst this should not matter hugely if such developments were genuinely sustainable in accordance with the presumption  in the NPPF,  there is a general understanding that inspectors (and LPAs) have been approving developments that fall a long way short of any reasonable measure of sustainability.

The second reason is that the inspector might find it difficult to find a plan to be unsound on grounds based on s19,  fearing a legal challenge from the LPA and/or concern from HQ that this would set a precedent for the preparation for all plans to effectively mitigate carbon emissions! However, the QC representing the LPA made no attempt to rebut the assertion of unsoundness on this legal ground and the development industry would be unlikely to challenge due to the benefits derived in the no-plan world. 

Where a point is arguable (although I can't see that the plan in question meets the s19 test) wouldn't it be better for decision-makers to err on the side of those seeking to protect the environment, leaving the spoilers the opportunity to challenge, rather than vice versa?

Rural Planning Review

One, if not the main purpose of this Blog  is to encourage people to engage with the planning system.   The Government is currently carrying out a consultation on planning in rural areas,  found at the following link

 https://www.gov.uk/government/news/boosting-productivity-in-rural-areas

Unfortunately,  the Campaign for Real Farming, the Soil Association,  Forum for the Future,   Landworkers Alliance,  Community Supported Agriculture are not on the list of consultees. If the response to this consultation is to show that there is an appetite for what Colin Tudge would describe as “enlightened agriculture" there needs to be a substantial debate amongst that fraternity to explain why the countryside cannot continue to be a playground for the rich.   The consultation is based on  an assumption that there should be less regulation in terms of the use of land and buildings which would enable  rural communities and economies to flourish.

Those responding to this consultation might consider  pointing out that there is a need for mechanisms to enable land to be made at affordable prices (i.e. genuinely related to productivity and not investment) just as affordable housing has become part of planning controls.   Any mechanism for providing affordable land should include a mechanism for providing associated housing (see earlier blogs that explain how planning conditions or obligations can be used when permitting housing on the edge of towns and villages).  Rather than  supporting residential conversions of agricultural buildings in locations very unsuitable to housing, these could be an invaluable resource for rural businesses including food processing and distribution.   Having  introduced the  “presumption in favour of sustainable development" into the National Planning Policy Framework,  this has not, to my knowledge, been applied to agricultural developments. Unlike the earlier Productivity Plan issued by the Treasury and Defra,  this latest consultation includes the Communities Secretary, Greg Clark. In these circumstances, replies the consultation can usefully refer to the NPPF;  the 'presumption', paras 160 and 161,  the support for Garden City principles (which included market gardening) and the benefits of local food systems in respect of carbon reduction and health/well-being.

All these changes imply either more regulation or a different interpretation of existing policy than the Government is used to. If the consultation is ignored by those interested in agro-ecology and local food systems then we only have ourselves to blame if the Government continues with its current policies.

Flooding, carbon emissions and section 10 of the NPPF

Just in case there are people out there who might want to contribute to the select committee investigation into flood prevention these are some of the points that could be made:-

 Expectations should not be too high in respect of the ability of any agency to predict the future of weather, climate or flooding.  Given the outcome of the COP21 in Paris and the national pledges it would be sensible to estimate climate, weather and flooding on a 3 degree rise in global temperatures.   Although circumstances might change, currently there is no evidence for any other basis for such calculations.

Planning has been carried out on assumptions that are proving to be completely wrong. Extreme (called ‘unprecedented’) and devastating weather events are occurring at about 1 degree of global warming.  Measures should now be considered which allow for events at significantly warmer temperatures.  Such measures should not be rejected because some optimism bias that makes it conceivable that the worst will not happen.

The planning system has been extremely bad at preventing building in known or suspected flood plains.  This is not because of the policies that have been accepted at national and local levels but mainly due to the Government’s desire to see housebuilding rates maintained and increased.

Due to section 10 of the National Planning Policy Framework ‘Meeting the challenge of 

climate change, flooding and coastal change’(emphasis added), all those involved in facing
the issues of flooding and climate change should  be following the Government’s lead that 
sees this as a single and inseparable challenge.

There is a obvious problem that the Chancellor has decided that much if not most of the

 Government policy in section 10 is not being followed by the Business, Environment, 
Transport or Communities (inc planning) Ministries. 

The most important issue for this review of policy is to take into account the excellent existing policy guidance at section 10 of the NPPF and then to consider why this is not being followed and what can be done to reactivate the policies in respect of carbon reductions in building, power generation and transport.  Carbon and flooding are also closely related in the agriculture sector that is a good reason to bring agricultural practices under planning control.   This is a very complex matter but its importance would justify a detailed inquiry by this or some other Government/Parliamentary body.

Summary

The problem is not with existing policies but in their implementation.

Unless the Government gets serious about reducing carbon emissions any flood prevention 

measures are likely to prove futile.

.