Humber vs Moor: Will the planning reforms work?

Nigel, why do you support the reforms?

Nigel Moor, planning consultant, Planning Pilots

For the first time since 1990 when Chris Patten basically reversed a conservative party because until that point Lord Young and Nicholas Ridley had been trying to deregulate planning and to an extent had succeeded. At that point Chris Patten, very conscious of backbench opposition to deregulation, basically changed the stance of the Conservative Party. Out of that came the 1990 Planning Act. I’d say since then the default position has been no. That most local authorities have been able to find in their local plans, policies, where they want to, to prevent development for whatever reason they want to.

So I think there’s been that default position and really for the first. A thing that under New Labour, a succession of planning and housing ministers never seemed to get to grips with. I can remember when Hazel Blears was announcing again [planning] deregulation, and literally days later, this is April two years ago – [the communities department] launched another huge menu of documents which were to be submitted with a planning application.

I think this is the first team at the Department of Communities and Local Government (CLG), that have got down to what it really means to trying to deregulate planning, trying to simplify and trying to give a positive outcome.

Roger Humber, strategic policy advisor, House Builders’ Association

I agree with an enormous amount of that. Can I just take one step back though and look at the reforms in terms of not just the NPPF - which on the face of it is the brightest star we’ve seen in planning since the 1980s when Patrick Jenkin tried to introduce those two draft circulars - and look at it both from the point of view of the NPPF, and what it tries to do very positively, and also in the context of the abolition of the Regional Spatial Strategies.

I do have real fears about this. While the Local Authorities are being told to plan positively, there’s all sort of guidance in the NPPF which appears to make it look as if, if they don’t and their plans are found unsound, and the presumption in favour kicks in, we get the development that we want.

I just fear that Local Authorities are not going to be willing to do this. It’s the political dynamic in the absence of housing numbers, that I really worry about. Let’s face it Eric Pickles is a very very political character. I don’t think he’ll want to go the way of Patrick Jenkin, fighting to the death and dying in the ditch. I completely agree with Nigel on supporting the reversal of the political intention. Absolutely welcome that. I just wonder about the deliverability of it when they take away the principal weapon they had for that which was the central housing numbers.

Just make one final point: Contrary to everything Grant Shapps says about Soviet tractor targets, and the figures not working to increase output, the truth of the matter is that CLG statistics show very clearly they were working. Between 2001/2 and 2007/8 the housing numbers – total net additions – had risen by 58%, and the trajectory they were going would have seen them get to about 240,000 homes per year, by next year.

It seems a tragedy to wipe away the housing numbers, and then introduce such a positive National Planning Policy Framework (NPPF) with the risks there.

I’d like to see the old housing numbers in place plus the current NPPF, then I’d be very optimistic.

Had the previous system failed?

NM

I share some concerns. But remember, the figures are there in the ether, because the evidence base that has come out of [researching] all of the regional strategies, is there. [For example] an area that I’m very very familiar with, Oxfordshire, when you look at the core strategies, in the main, the figures approved by the panel, and subsequently adopted by the government, those figures are now guiding the councils in Oxfordshire, which is very much a growth area. It’s going to be a question for the inspectorate. It seems to me they will give a lot of priority to the evidence base.

It’s not perfect, I agree. The problem was there was so much baggage with the regional authorities, there was no chance of them being kept – then the paradox of abolishing the system itself. But the evidence base is there, but it’ll really be a big task for the inspectorate, to ensure this evidence base is properly reflected in the core strategy.

RH

I agree entirely – [but] it’s where I see the real problem arising. The evidence base is there, it’s clearly been stated to be a material consideration – it’s not going to go away. The problem is that while you can point to some Local Authorities who are following the evidence base, we know there are others whom have said: “Whoopee this is great we can now scrap all of this and just start all over again.”

I just question the political dynamics of this going forward, when considerable Tory authorities give the planning inspectorate a terrible problem. What I see, and what I fear, unless the grassroots Tories have really undergone a damascene conversion – that they’ll seek to challenge the system politically through the inspectorate. There’s a risk of plans being taken forward that don’t reflect the evidence base. The inspectorate will say it’s not sound. This should open the door for the presumption I favour, and the Secretary of State to grant appeals for such time as they come to their sense and adopt a sound plan.

The problem with that is that’s a system that is from the outset on a collision course, that can only end one way – and that’s in favour of the grassroots Tories. No Secretary of State is going to sit there for too long and allow this to happen. As you rightly say there were problems with the democratic legitimacy of the regional bodies. But I wish some way had been found of retaining those numbers in policy, whilst getting rid of the regional body. I’d feel much happier about a beneficial outcome to the system than I do at the moment.

What about Shapps’ analysis that the previous planning system had been failing?

NM

Were the numbers going to be delivered? The fact is the housing trajectory did increase from 2001-2007 by 58%. If you refer to the 2010 housing statistics, the statisticians are telling a truth that the politicians just did not want to acknowledge, that the housing net additions increasing by about 10,000 a year, and if that had carried on we wouldn’t have been too far away from the 240,000 target. Now whether all the stuff that was coming through the planning would ultimately have been deliverable,  and I’m sure Nigel shares the worries that I would have about the economic viability of some of the very big schemes that were being pushed through the system to make up the numbers even without a credit crunch. But the figures speak for themselves: they were on a pretty virtuous trajectory pretty well opposite to the position portrayed by Shapps.

Where Shapps was right, was that the system wasn’t working in that local plans weren’t being delivered – but they weren’t being delivered under the previous system, or the previous system to that. So there is a fundamental problem about local plans, but somehow, the housing output was on an upward trajectory – and I believe therefore that somehow the existence of the housing numbers was influencing local authorities, either in granting permissions, even if they didn’t’ have widespread support for them, or in helping us to win appeals. But the numbers speak for themselves, and they’re not what Grant Shapps tries to pretend.

I’m not saying it didn’t need reform – but despite that at least the housing numbers were coming through.

NM

The difficulty is to disentangle whether that was a reflection of those targets, or benign conditions in terms of the housing markets itself. We both agree that the figures won’t go away, they’re in the system. We need to find a way of making sure the system reflects that. It’s not going away – ministers aren’t going to be prepared to sanction the tractor targets again.

The difference now is that this govt has got the highest majority of any post war govt since Attlee. If they are going to want to take this thing forward, then they’re going to have to take the back bench flack and not buckle – on the basis very few backbenchers I expect want an election, and not before four years time.

So I think it’ll be a case of staring down the barrel, and it’ll be the person who flinches first. I just hope there’s a bunch of ministers – who do seem to be working well together – that have got the balls to work this one through.

RH

It really does come down to that. It’s a strategy that is going to require an awful lot of political courage. The worry I have is that over the last 25 years, we’ve always seen ministers flinch in the face of backbench revolts. As you’ve seen, when Jenkin and Ridley, tried to deregulate, tried to make the system more market responsive. The backbench rebellion amongst the Tories grew to levels that Chris Patten clearly decided was unsustainable and introduced that the default option was no, which was exactly the opposite of what it what supposed t have been, since 1947.

Now what we’ve got to pray is that ministers do have the balls to stick with it, and do, when an election is pending – because obviously an awful lot of this conflict will only unwind much closer to the election as Local Authorities have got to bring forward plans – this conflict will probably intensify much closer to the election. And that’s the time the coalition will be starting to unravel, and pre-election positions will be starting to be taken. And the Liberal Democrats, we know what the Liberal Democrats are like, it was them that started to trigger the Tory panic about planning in the 1980s because of their pavement politics in opposing everything.

I hope exactly the same as you that they’re prepared to stare down the barrel and them and stare them down, but I’m looking and the political dynamics and saying, hmm, there are big risks.

Having seen the coverage of NPPF in the newspapers over the weekend, with the links being made to the government’s U-turn over selling off the forests, is the government over-reaching itself with the pro-growth NPPF?

RH

This is a real worry. Why I was referring to the Patrick Jenkin saga. This just has the beginnings of the Patrick Jenkin saga about it. We all like what they’re saying here in the NPPF, but have they sufficiently prepared backbench opinion for the boldness of it? Or are they going to face a long summer of good old [National Trust director general] Fiona Reynolds of cranking up opposition, just like she did in the 1980s, lobbying MPs, Lib Dem MPs in caucus meetings and playing them off against each other – that there is a risk that the government says - not current ministers, who understand, but at god level – David Cameron says, this isn’t doing much for my re-election chances. This weekend’s press did really depress and worry me a bit.

NM

This clearly is the issue. But Oxfordshire, where quite a lot of the Communities team have an interest, they’ve been pretty robust. I’ve seen recently, within district council, planning portfolio holders having to take very difficult positions with regards to additional housing, a lot of ward difficulties.

You’re analysis is right, it’s going to be a long long struggle.

But the difference is, it’s set against a world context – even Tory backbenchers realise it – and the need for growth – and these are the only levers that the politicians have got available to them.

RH

When we talk about failing GDP, the CLG construction statistics show that the value of housebuilding sector was worth in 2007 nearly £20bn, well now it’s worth barely £10bn – and that’s without the multiplier effects down the economy. What I’d like to see is the ministers much more strongly making the case for this new approach in relation to more housebuilding, by referring it to the enormous loss of growth we’re suffering because of the downturn, and the positive impacts of more housebuilding. I don’t think they’re making that strongly enough.

NM

What was so dismal over the weekend, was the whole predictability of the criticism and the direction it was coming from. Ministers already going on to the back foot, defending the changes, rather than going on the front foot and setting out the benefits of the new approach. There has to be much more concentration on effects.

But to move on from the political, to the detail, aren’t many of the measures, such as planning for 20% more housing, the inclusion ofviability, isn’t all this stuff you’ve been asking for?

RH

I share Nigel’s enthusiasm for the thing on the face of it. My concern is for political deliverability of it. Yes it is enormously welcome to get some of these things in. Viability is just hugely important. One of the things we’ve got to work on now is getting guidance.

One of the things I’m a bit disappointed about, is that ministers, having put the centrality of viability so glaringly clear, they’ve then washed their hands on producing any guidance on how Local Authorities are supposed to measure viability. They’ve just given it over to Home Builders’ Federation and the Local Government Association, and given it over to a working party that’s going to be convened by the Homes and Communities Agency. So in other words, we’ve been sent away as an industry to work with local government. I don’t know how that’s going to pan out, I don’t know if we’ll produce guidance that will stick, that can be agreed, and that will really tackle the absolutely key points in viability.

There are two absolutely key points, once you’ve listed out the requirements and what you want. One is the return to the land owner. I don’t know how we’re going to get the development industry and local govt to agree that, because they’ve seen robbing the land owner as being the way in which they make up for lack of public expenditure. And then secondly, agreeing the proper rates of return for the developer in current market conditions and taking into account the risks they have to take.

I ‘m very very positive about the requirement, but a bit negative about how the government has washed its hands of it and said “well you go and sort actually how it’s going to be done.”

NM

They had no alternative, because if they’d had imposed their own views in terms of viability I think it would have caused as many problems as it would have solved, don’t you?

RH

It’s great to get the recognition of viability, but how to get the recognition of the Planning Inspectorate (PINS) to produce positive results? Rather than where the inspector has said: “well yes, it’s not viable now, but it will be in five years time when the market recovers.” Or: “oh yes it’s not viable to have affordable housing, but it will be one day.” In other words you’re getting unimplementable planning consents. We’ve got to get guidance that prevents that kind of thing from happening otherwise the viability thing comes back and shoots us in the foot.

NM

You’re right I’ve experienced that in a number of planning appeals, and so, as you say, the viability has to be within 12 months, otherwise the inspectors are very fond of looking to a bright and rosy future.

Whether we write the guidance or whether the government writes it it’s very challenging.

Why do you think it’d create as many problems as it solves if government writes it?

NM

I think because I’m not sure the govt is in a position to fully understand where developers and landowners are coming from, so if the HBF has got the option of putting forward draft proposals on return on land value and return on development cost, then I’d rather that than civil servants draw it up. It has to be within this rolling 12 month calculation period because of the way the market changing.

RH

I agree with Nigel, I wasn’t envisaging that civil servants wrote it – I was envisaging that the government held the ring with developers and Local Authorities to produce the guidance, rather than saying “we can’t possibly have anything to do with this, you go away and produce the guidance.” I think that someone somewhere along the line may need to arbitrate. I think they cannot wash their hands of it – they have to arbitrate.

Aren’t there similar problems in other areas of the NPPF. Being so short creates its own problems, including greater threat of legal action, doesn’t it?

NM

I think this is something the government has attempted to address with the glossary. It attempts to set out a simply as possible approaches to things that have been assumed, or evolved through planning appeals etc. It may be that one has to look through the glossary and refine it – because without that refinement we lose time with endless analysis and conjecture.

RH

The other thing we all picked up a bit late. There are policy changes tucked away in the Regulatory Impact Assessment, that aren’t even on the face of the glossary or the document itself – particularly getting rid of the site size threshold for affordable housing. That was very very naughty, and if it hadn’t been for the PINS analysis I don’t think a lot of us would have picked it up for a long time.

NM

It’s in a supplementary document.

RH

It’s in the Regulatory Impact Assessment. If it is the intention, by remaining silent about the threshold, to get rid of it, it is such an important point it should be made explicit on the face of the document. It is ridiculous for the inspectorate to point out in a briefing note that the absence of anything about a site size threshold actually means there is no site size threshold. It’s an extraordinary way to develop policy if that is their intention. Of course it may have been an unintended consequence.

Is there a concern therefore that if something isn’t explcit, it leaves people wondering what is and isn’t policy?

NM

I think it’s inevitable isn’t it given the scale of what has been attempted, there will be these things that come out? It needs people to be very zealous and put them forward. I’m quite pleased with the way the Planning Inspectorate has been responding to this. They’ve already gone online saying the NPPF is a material consideration, they were very quick to do that. And also, they’re analysing it so inspectors are quite clear what the direction of travel is.

RH

It was in that document they’d picked up this issue over site size threshold.

Another one – this is where the arguments get rather arcane – I’m a little bit concerned about another reference that’s completely disappeared, to prematurity. You could argue that the introduction of the presumption in favour means that automatically there is no prematurity rule. But on the other hand, given the direction of travel we were going in, when you had the Fylde coast decision a few months ago, which was quite clearly decided on prematurity, despite the fact that prematurity was ruled out in Planning Policy Statement 3. I just wonder where there is still room for prematurity to come in somewhere despite the presumption in favour and all the things supposed to follow from that.

NM

If it did it would be a complete non-sequitur. I think we’re moving toward the planning system we thought we had back in 1990. Where the planning system had two components, it had the plan preparation, but alongside that was the development control. So if for whatever reason the plan preparation was inadequate or lagging, you could remedy that very easily and quickly by granting planning permission, whether at application or appeal stage. For that to have any force at all, it must mean that prematurity can no longer be a basis for objection. We do need clarification on that – not just base it on a stream of planning appeal decisions.

RH

Although as you say it may seem a non-sequitur, I think there are certain changes that are so important, that even if they’re stating the bleeding obvious, you need to state the bleeding obvious – ie. there is no longer any problem in the absence of a plan.

NM

You’re right it needs to be clarified

JG

Is the door being opened to legal action by the NPPF?

NM

You cannot prevent that. I’m pleased by the way PINS is being so pro-active, so ultimately if one could look to the planning inspectorate for interpretation rather than the courts, that would be a much healthier situation, certainly cheaper for everyone concerned, and probably quicker too.

RH

The good thing about the courts as far as planning is concerned, is they’ve always been very zealous about saying if they possibly can “this is not a legal issue, this is a planning matter, and therefore there is the appeal process for determining it.” In fairness, they have tried on a number of occasions to limit the areas of challenge, by saying it’s not for them rather than legal points.

I just hope that a lot of the disputes will so clearly be viewed by the courts as matters of opinion and policy and not for them, so the tide of opinion of rushing to the courts begins to flow against rushing to the courts first off because you know you’re not going to get no joy out of it.

Won’t the government have to issue a lot more guidance then?

NM

Not necessarily – we had a similar issue around human rights, which was dealt with by a single strong case.

RH

We’re going to need something similar to that – one really big strong decision to knock a lot of stuff on the head. But undoubtedly people are going to try it on in the first place.

Does this change raise issues of the transition cost of getting to the new system, particularly if it is arguable the system wasn’t broken in the first place?

RH

We all regret huge change, unless it’s manifestly beneficial, and we have faced upheaval and change. However, what I am concerned about, is I’ve spoken to a number of consultants and lawyers, and what they’re saying is, that there is so much uncertainty, and there is so much risk, that actually quite a few major clients are on investment strike at the minute. Because it’s so expensive to make development applications at the moment, you daren’t dip you’re toe in the water, you’re in for so much money, there is a bit of a hiatus anyway.

So in so far as at least if you’ve got this NPPF out, and regardless of my fears of how this may end up, this could actually have the beneficial effect of getting people off the fence: it’s there and we’ll give it a try now.

NM

There is a hiatus, because the cost of testing the planning system are so astronomical now. But once the viability issue is clarified, that might be an incentive to a lot of people – yes we’ve got this, we can see where we are in terms of the kinds of returns we can look for on a development, and that we’re not going to be pushed into a corner by a local authority, because the guide rules are there. On that basis one would hope that people will say this is the time we can start promoting these projects on the basis we’ve got three years lead times before a next general election, with these ground rules established.

RH

I do think that regardless of my long terms fears of the political deliverability, in the short term it could stimulate quite a bit of activity because developers, let’s face it, have to be more optimistic than people like you and me. It’s in their nature as entrepreneurs to be so. And if they see a beneficial change in the system, they’ll do their best to take advantage of it.

Is there a political problem in that the government promised to give local control of planning. But 95% of Local Authorities won’t have local plans up to date – they’re actually not living up to their promise – because they’re potentially putting the huge majority of development in the hands of this presumption in favour?

NM

You’ve got potentially two parallel system. Got the high order system. And the localism. And to what extent local communities will get engaged. It was always a big call, because for a local community, the costs of assembling the kind of package of information and documents you need for any significant proposal was always going to be of a high order. At the moment the localism appears to be limping along behind these major changes. I don’t have a quick response to it, because I’ve been involved with my community with a new community shop proposal, and we’ve had to go the long way round, in terms of all the docs we’ve put together, and it’s taken a great deal of cost and pro bono time on everyone’s parts.

RH

There’s quite a lot of smoke and mirrors on this and at some point the government is going to find itself held to account and asked some very hard question by localists, who believe in localism and thought they were going to have quite substantial localism. There are two elements to this.

One was obviously those who hoped that the first thing it would allow them to do was chuck out all the old regional figures and virtually have a standstill on development if they choose to do that. At the moment the government is signalling to them “no, that’s not what it means.”

I think there’ll be an awful lot of people who are trying to get there, and the conflict we were talking about earlier on is going to take place who are still trying to achieve that, and the determination of minsters and PINS to do the other thing.

The other bit of it is that at neighbourhood plan level, where the degree of localism and the degree of what can do locally, is so much less than I think they were led to believe by Shapps and Neill and Pickles, and it’s also going to be very very difficult. I’ve been to a couple of presentations , including one by Steve Quartermain at the National Planning Forum, about how a neighbourhood plan would have to be brought forward, about how a neighbourhood plan would have to be brought, and everyone was sitting there with their head in their hands at the end of it, thinking that’s absolutely ridiculous, no-one will ever want to do it.

And of course the things that neighbourhood plans can do are of course very very restricted, and they can’t do anything that creates less development than the local plan – can only do either more development or different development, and I don’t think that many people will be bothered to do that.

So I think when people stand back there will be some very big questions about how far localism has been delivered as opposed to this growth strategy.

NM

I can’t reassure on this, I think his analysis is correct. It may be that it was never going to deliver what was promised. It may be that some communities are really serious about more development, and they can look to localism to help. I think there’s going to be a lot of disappointment and a lot of political flak.

RH

Many of those communities are in the north and midlands where they’ll do anything they can to get growth but of course the market isn’t there.

Ultimately how likely do you think the government may have to backtrack?

NM

Don’t think there’s any evidence so far of backtracking. The opposition to CPRE and the National Trust has been quite robust. This is where the housing industry can help really to give ministers a really positive picture of where this is going, not be so defensive all the time – to get the message right.

We’re responding to household changes that surely everyone can understand. We’ve got to get a better message across than we are at the moment.

RH

This is absolutely key. Ministers are too close to the coal face, they’re not seeing the wood for the trees in the presentation. They’re in to all the detail. They need to stand right back and say to people, “why is it so many of you 30 year old children are still living with you?” – we’ve got a huge shortage of housing.

Look at the way the planning system is holding back growth. We’ve been asked for Plan B. This isn’t that, this is an important part of plan A, that just as we’re reducing public expenditure we’re doing everything we can to stimulate private investment to promote more growth.

Got to put it in the context of what everyone knows is a shortage of housing and don’t want to face up to it, and also to the bigger global problem of economic recovery of UK PLC.

JG

So far when I’ve talked to Greg Clark he’s resisted putting it in that context

NM

Yes so far, but what we’ve both really chronicled is the change that has taken place from when the Conservatives were in opposition to now as they are in government. As part of the change, I can see they’re already realising if they’re to cope with the likes of the Campaign to Protect Rural England (CPRE) and the National Trust (NT), they’ve got to articulate that much stronger message.

RH

Got to come back and fight very much harder – they’ve got to start playing dirty with CPRE. People have to know the CPRE have got a long history course record of negativity over the years, and they’ve got to start saying so. And got to start preventing the NT and CPRE from taking the moral high ground – got to start to playing some proper Alistair Campbell dirty politics with them.

JG

Ultimately, will they back down?

RH

It is a risk. I was very depressed by the coverage in yesterday’s papers. The key is the government has got to say no we’re not going to let this be like the woodland policy or the forestry policy, we are going to defend it because it really matters.

Got to be clear they’re up against the same dirty tactics as they were in the forestry arguments. That was grossly exaggerated, grossly unfair. It played on the ignorance of people that the majority of the forests were in public ownership, when only a small minority ever was. Fiona Reynolds, is eliding the distinction between green belt and green field, that green belt is going to be built all over. If you actually look at the guidance it is as strong as green belt guidance has ever been, there is no diminution of green belt guidance in these proposals at all.