The performance gap

 In the real world controls over the use of land and buildings (ie planning) and formulating low/zero carbon transport policies count for nothing unless the gap between good intentions and lousy outcomes is bridged. I am not referring to deliberate cheating that was exemplified by VW emission tests, but the sloppy way in which the elements of the various systems are linked leaving scope for leakage and slippage at every 'join'.

Writing at a time when the Government seem to have been energised by having the COP spotlight turned on its chairing role there might be an opportunity to introduce some meaningful policies that could cut through the blah, blah, blah.

As an aside, the Ministers claiming that the PM/Government could not intervene in the Cumbria coal mine proposal that is being considered at appeal were in denial or ignorance of how the planning system works.  Followers of this blog will know that planning decisions are taken under the stricture of s38(6) of the PCPA 2004, "...in accordance with the development plan  unless material considerations indicate otherwise."  I don't know what the local plan for the area of the coal mining application has to say on the matter, but I do know that what Government Ministers say in a formal capacity count as material and must be taken into account.  The principle of 'sub judice' does not apply to a planning case where at the time of making a decision all material considerations must be taken into account. The Business Secretary, the Minister for Leveling up, or the PM could issue a statement written on departmental letterhead or spoken in Parlaiment and recorded in Hansard, that the appeal inspector would have to take into account (no compulsion to follow, but very surprising if adequate and intelligible reasons could be found not to). 

So working on the assumption that the dust will be blown off existing policies relating to sustainability and regeneration and where necessary will be replaced with even stronger ones, there is still the significant risk that implementation will fall short of what is necessary to reduce carbon emissions.  The draft SPD posted on 17 April 2020 [Climate and ecological emergency SPD]is still relevant and can be proposed to local councils without the resources to update development plan policies in the timescale required.  But what is needed is a stiffening of the links between words and action.  

All development plans and SPDs should include requirements to appoint independent experts, before, during and after the development is carried out:

-  to ensure compliance with the conditions that relate to building standards (building inspectors will not be checking the quality and quantity of the insulation on every house),

- the same or different expert to help the residents understand how to operate the low/zero  carbon living for which the building is designed, 

- an assistant to organise the low carbon and active travel (setting up the car clubs and related IT systems), 

- an assistant to support low water use including composting systems and toilets, and biodiversity improvements across the site and its boundaries (ie https://drive.google.com/file/d/1axaIWMl1n4vKWAjFYRaHMfFI6DEbYURD/view

How these independent experts are to be sourced will be up to the developers who (with few exceptions) have been found not to be trusted or relied on in these respects.  These helpers should have excellent communication skills but also be armed with some concrete means of persuasion such as rewards for low energy use, possibly paid out of a fund collected by those responsible for higher levels of emissions? Remember contraction and convergence anyone?

This role could be described as facilitating One Planet Living and could be filled by one or more people or one consultancy. The setting up of neighbourhood assemblies could and should also be part of the job.

What emergency?

 I have just watched ministers from MHCLG (about to be amended to include leveling up) and BEIS answering questions put by the MHCLG select committee. According to the ministers everything is going swimmingly (apart from the hiccup of the Green Homes Grant) and we are 'gliding' to net zero carbon.  There is no problem with new housing being the responsibility of MHCLG and retrofitting existing under the care of BEIS.  Nor is it a problem for local councils to fund their response to the climate emergency because there isn't one ie all will be sorted by 2050.  Building to net zero (as was intended by 2016 under a previous administration) must not be allowed to interfere with building new houses designed to a good standard; not net zero and without any post occupancy evaluation. No understanding that upgrading of any meaningful kind would be harder and more costly than when in the build. The planning system is being changed but the minister was not briefed that any council that had interpreted the NPPF presumption in favour of 'sustainable development' to mean that the development had to be sustainable, as he claimed,  was simply overruled due to an assumed shortage of available housing land. leading to the building of houses that will now need upgrading.

The members of the select committee asked all the right questions (the Chair Clive Betts interjected "...that won't save the planet"!)  but the format squeezes ministers and their civil servants into their box of self-justification rather than into a collaborative discussion of how to get out of this mess.

The new Secretary of State for leveling up (and housing but not, perhaps, local government?) is Michael Gove. The main message is that the transition to a low/zero/negative carbon economy could and should be the same as one that levels the country socially and economically.  Most if not all the ways in which inequalities are expressed would be severely limited when there carbon footprint comes into play.  The housing resource will have to be more evenly distributed by subdividing existing houses so that the space and fabric being heated and insulated is being occupied and meeting genuine housing needs. This will reduce the need for new building and the carbon emissions emitted from the building materials and operations and associated services and infrastructure. The increase in population density would support lifetime or 20min neighbourhoods. The works could be carried out by custom-builders turned custom-splitters. Biodiversity would not be lost to new building in the countryside or back gardens.  Mr Gove should be delighted that sub-divisions at scale would reduce the 300,000 new dwellings per annum target that was a factor in losing an election in the 'blue wall'.  Sharing of EVs, more walking and cycling, less flying, more repairing, reduced obsolescence, fewer new clothes, enhanced local green space are necessary components of a zero carbon economy but all are more generally affordable.  That leaves energy for heating, cooking and lighting which will require a better fit between the size of households and housing.

Michael Gove was the original chairman of Policy Exchange, the think tank responsible for the planning white paper.  His shuffle to LUPMHCLG is to repair the electoral damage that the white paper has inflicted! It is just a pity that he is unlikely to see carbon budgets that have a sense of reality (ie to zero by 2030) as key to leveling-up that is a political slogan.

Reviewing the Bacon Review

The review of custom and self-building (CSB) carried out for the PM by Richard Bacon MP has just been published.   After 100 pages it recommends Homes England be given a greater role, more publicity including CSB show parks,  support for community-led housing, realizing potential of MMC, getting  support from the new planning framework and Act and ironing out creases with the tax regime.  Not much to object to but why does it take 5 years to expose the abject failure to implement the 2016 Housing and Planning Act? 

 Unfortunately Richard Bacon blames a conspiracy between the volume builders and the planners instead of the real culprit being the Government and the Secretary of State who cannot face the fact that the planning system could and still can get this show on the road.  The slagging off of the existing planning system and the support for Planning for the Future (by Mr Bacon, a Tory MP) fails to identify the main reason why the planners are such an easy target; the contradictory and/or inadequate advice provided by governments (eg Secs of State) who fail to or are ideologically opposed to understanding the potential of relying More on regulations.

If LPAs had been properly equipped with strong and consistent advice on CSB since 2016 the last 5 years and counting would not have been wasted, nor would this report or speculative recommendations be needed.  Even now, a clearly worded Written Ministerial Statement from Mr Jenrick (now Mr Gove) could have immediate benefits. 

 A minority of the public say that they would choose a new home but, I am afraid to say, about 80% of those that do, claim that they are happy with their choice.

The economic consultants to the report  concede that the energy efficiency standards of new building will improve so that the differential between the volume builder and the self/custom builder will narrow. In fact the gap must close to a net zero standard of construction and operational carbon if carbon reduction budgets are to be met. It seems unlikely that the recommendations will result in CSB becoming  any less  focused on detached houses and enabled to promote terraced houses and apartments that will required for new housing to meet carbon reduction budgets.   There is no mention of the imperative to "retrofit first". The Department of Leveling -up, Housing and Communities decline to say whether the new Help to Build Fund will be available to those wanting to sub-divide existing properties?

The need for residential sub-divisions, so that the insulation and heating of about 50% of our residential space and fabric is not wasted, is not mentioned. It would have been really interesting to see an economic analysis (inc social welfare) of custom-splitting.

It is hard not to see Richard Bacon as part of the failure to deliver on the 2016 Act and his criticism of the planning system suggest a significant lack of understanding of how it could and should be enabled to deal with this and other aspects of meeting housing needs.  My advice is to take some of the data from the report to persuade your LPA that it should be supporting CSB, but in the form of residential sub-divisions and custom-splitting. Given the climate emergency I am not inclined to be supporting hundreds of thousands of new builds however delivered.

Planning can address the climate emergency

Big claim for what might seem to be a small gain but this extract from a planning appeal file:///Users/danielscharf/Downloads/Appeal%20decision%203269526.pdf "Para 72.The S106 would ensure the implementation of a travel plan that would seek to encourage sustainable transport modes via initiatives such as residential information packs (including vouchers towards cycling and bus/rail travel) and car sharing. The S106 would also make provision for an electric car club to operate from within the site. 73.Based on the above measures, the development would satisfactorily promote a range of sustainable transport modes. This would help to address concerns regarding air pollution and the climate emergency. Therefore, it would accord with LP Policies CN9 and EM1... ". This is very significant.

In granting the permission the offer of an 'electric car club' is said by the inspector to carry limited weight as it comprised one parking space for the 110 dwellings. However,  the inclusion of the obligation to provide the EV car club would probably have been deleted as unnecessary were the inspector to have given it no weight.   Local planners should get a grip of the electrification of the road transport system.  Developers should be required to provide more cars and spaces to attract greater weight in decision-taking.

The real significance of the decision is the reference to the 'climate emergency'  - the first time I have seen this referenced in an appeal decision. As a material consideration this is an invitation for the public to provide evidence to decision-takers, both; LPAs and inspectors/Secretary of State, that accords with the emergency situation eg net zero long before 2050 and Cornwall are looking at 2030 https://www.cornwall.gov.uk/media/ytsowko1/climate-emergency-dpd.pdf. This should not be limited to electric car clubs but to the carbon emitted in the building and operation of the houses.

If the climate (and ecological) emergency  is a material consideration, then it is unlawful not to take it into account for all developments implying carbon emissions (and biodiversity loss).  It might also be unlawful to make inadequate provisions for addressing the emergency.

Abject failure to deliver on self-building

 

The Right to Build Taskforce www.righttobuild.org.uk is trying to draw attention to hopeless state of self and custom building in the UK.   The New Self-Build Data Release І4 August 2021 issued by the MHCLG reveals the failure of Government to achieve anything close to what it has said it would like this sector to contribute to new housing supply and shows that a large proportion of councils are in breach of their legal obligations in terms of permissions for serviced plots available for self/custom builders on the statutory registers, and a fraction of the opportunities that NaCSBA say is the real demand.

 

The Task Force has assessed a large number of “general support” policies in local plans and find that they are of limited use in decision-making.  “Allocations, exceptions, percent policies and criteria based support for community-led and collective infill and exceptions are the most robust policies for providing an responsive land supply for self-build.” Any qualified planner working in development control/management would have known that this would be the case.

 

Richard Bacon MP should take credit for the current state of the law (ie the duty to permit serviced plots commensurate to the demand on registers), but has now become complicit in the failure to deliver in accordance with the legal duties.  Neither he nor NaCSBA (or the Right to Build Task Force) have ever been prepared to support custom-splitting as a way of increasing supply of opportunities for people to create their own homes, equivalent to a serviced plot but generally within existing built-up areas with existing facilities. New dwellings would be created with minimal levels of 'construction carbon'.  This would be a means of enabling the space and fabric of existing houses being heated and insulated to meet housing needs.  It will be interesting to see whether the Bacon Review to be published in the next few weeks has anything new to say on what is a sorry state of affairs.

 

Special housing needs override planning constraints

Although planning decisions do not operate as ‘precedents’ in a legal sense, the views of an inspector or Secretary of State in deciding one appeal can influence how a decision is taken on another application or appeal. The law does expect a level of consistency and requires adequate and intelligible reasons to be given for a departure from a decision on the same site for a comparable development (ie material change in circumstances).

 

In a recent appeal an inspector allowed an extra care development in an AONB, on grounds that there was “hardly any market extra care housing in the district” and “the stark fact is that choice is not available”. In applying the test at NPPF paragraph 172, which requires “exceptional circumstances” to justify major development in AONBs, the inspector commented that he was “in no doubt that the development... is needed”, and that this need could not be met elsewhere or in any other way. Readers of this blog would be very aware that custom-splitting represents an alternative way to meet some of the housing needs of the elderly but this has not established ‘proof of concept’ or become recognized in the planning arena.

 

Expert evidence given to the inquiry and relied on by the inspector was that, “…the need to provide housing for older people is critical. People are living longer and the proportion of older people in the population is increasing. In mid-2016 there were 1.6 million people aged 85 and over; by mid-2041 this is projected to double to 3.2 million. Offering older people a better choice of accommodation to suit their changing needs can help them live independently for longer, feel more connected to their communities and help reduce costs to the social care and health systems. Therefore, an understanding of how the ageing population affects housing needs is something to be considered from the early stages of plan-making through to decision-taking.”

 

That is ammunition for those promoting housing for the elderly (inc custom-splitting), but another lesson to be drawn from this appeal is that self and custom-building, another special case, has been identified by the Government as a form of housing that requires support from planning authorities; keeping statutory registers and then approving serviced plots targeted at that level of demand.  The failure to do so could justify developments  for self/custom – builders in areas where ‘exceptional circumstances’ need to be shown ie AONBs or where there is some landscape impact. I hesitate to say that Green Belt sites would be approved locally or at appeal due to political sensitivities.

Has Policy Exchange damaged the Government?

 This is a letter on the online version of the Guardian 21 June. 

"Having worked as a town planner for over 40 years it is thrilling to
see my profession in the middle of a debate about the future of the
country (Is this by-election a watershed moment?19 June). The
background to the Planning Bill is a White Paper written by a recruit
to No10 from Policy Exchange. And Policy Exchange fielded another of
their analysts in the aftermath of the Chesham by-election to blame
the voters' for misunderstanding the forthcoming changes to the
planning system.

It would be truer to say that as the think tank, Mr Jenrick, the Prime
Minister and the White Paper have all avoided the real problems with
providing decent, energy efficient and affordable homes their
'remedies' were never going to work in either the north or south of
the country. The LibDems should follow their election win by
explaining how they would deal with inflated prices of building land,
construction carbon, cold and leaky houses/flats and unsustainable
levels of under-occupation." 

I have to say that I am a little bit pleased to see how Policy Exchange has seen their plans backfire so spectacularly.  Whether or not the Chesham voters had read and understood the White Paper, the label of "developers' charter" is likely to stick. Bleating that the purpose would be to "build beautiful" (Policy Exchange), and to "increase supply" (the PM) does not alter the impression that this ideological and badly framed change to the planning system is primarily designed to help the Tory supporting development fraternity. The (too) cozy relationship between Policy Exchange and Government might also be punctured.

There are some good intentions in the White Paper but these are largely irrelevant or harmful to the climate and ecological emergency. Any changes to the system should be vigorously resisted until they deal with, "...inflated prices of building land, construction carbon, cold and leaky houses/flats and unsustainable levels of under-occupation."