The Planning White Paper: An Alternative View

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There is a piece of rock on the hill behind my house where I go to contemplate the world or try to work out how I might deal with a certain issue.

From that rock, I can see both the North Sea and the Atlantic at the same time. I can also see every house bar one in the settlement in which I live. I have been spending a lot of time recently on that rock both physically and metaphorically. The following are my personal reflections on the implications of the White Paper that do not seem to have been considered at all but which, nevertheless, seem important to me to be at least considered.

Is all change for the better?

I appreciate that change is difficult for some people but that has never been an issue for me. I once had to go through one of those psychometric tests and I came out as a “change agent” which means that I actively embrace and bring about change.

I have no issue with the fact that the planning system has many idiosyncrasies and difficulties that need to be addressed. However, whilst there are some good proposals in the White Paper and other announcements on other policy initiatives I really do question the need to make such radical change.

I noted with interest that Christopher Young QC in the special HWGPNFY made the point that the majority of the changes could be made without the need for such wholescale change using the present system. Once again it seems to me that we have allowed economists and accountants to prevail without really asking whether the changes are that necessary.

A famous economist (Keynes I think it was) apparently once said that economists existed to make fortune-tellers and astrologers look respectable. Add in the super forecasters and weirdos and you begin to wonder where we might end up.

Do we really want the planning system to be shaped by thinking that rarely ever gets its predictions right in any event? Having digressed I move on.

Reducing affordable housing

In tandem with the White Paper, we had the consultation documents on First Homes and the proposal to raise the threshold for affordable housing. I found this latter proposal somewhat staggering in light of the current rate of supply of affordable housing.

Some recent research concluded that we needed in the region of 95,000 affordable homes per annum just to stand still. The White Paper informed us that the section 106 regime is currently delivering just less than one-third of that (28,000 or so). The question has to be asked how it can be in anyone’s interest, even for a short time, to then propose to reduce this even further. The intention behind this proposal is laudable but misplaced.

The reality is that all this will do is provide yet further uplift in value for landowners and will not help SME’s to acquire land as the price will have increased.

In addition, RPs will be forced to compete for sites thus forcing up the prices they may have to pay to be able to provide affordable housing. For those on current waiting lists with little or no prospect of being rehoused in the foreseeable future, these proposals must be incredibly difficult to swallow.

I have always had an interest in housing and have previously chaired the Development Committee of a large regional RP as well as chairing a small homelessness charity. Anything which inhibits the ability of those on the front line to deliver affordable housing is not, in my view, a sensible proposal.

The knock-on effects

However, there are knock-on effects that are also related to proposals in the White Paper for the demise of section 106. It is also a point which I suppose might be called a theme that will run through the remainder of this article.

At the present time, there are a large number of solicitors, legal executives paralegals etc in both the public and private sector who spend a good part of their day drafting and negotiating section 106 agreements. They, in turn, have support staff who rely on their continued employment for their employment.

If the threshold is raised, even temporarily, to 40 or 50 there will be a significant reduction in work for those individuals.

At a time when Linkedin and other websites are awash with professionals in the planning sector seeking new employment following redundancy will there be a second wave that now includes not only lawyers but surveyors/valuers who will not have any work to do and will face the same problem of redundancy as those planners who have already lost their jobs.

I appreciate that Kit Kat said in HWGPNFY that he could hardly plead for a special interest group and that is correct. However, I do question whether the fortune tellers have factored in the economic effects of making further professionals unemployed at a time when jobs will become increasingly difficult to come by.

I had personal experience of this for a little while in the early 1980s after leaving university. For my own part, I am in the fortunate position that I could decide to retire although that was not something I had been contemplating for another couple of years. I am lucky in that I am part of that generation that had its university fees paid and I even received a grant.

As the eldest of 8 children from the battlefields of Derry in Northern Ireland in the late 1970’s I would not have been able to go to university otherwise. I have always been grateful for the opportunity I was given then.

However, I feel for the junior members of our profession who have become planning lawyers and also those in mid-career who are faced with the bleak prospect of having their careers cut short. They will all have homes, maybe families, aspirations and dreams not to mention a significant student debt.

All of that will be completely turned on its head and will, in turn, have a significant economic impact in terms of output and also potential social security benefit claims.

I accept that some people may be able to retrain, see later, but will there be sufficient jobs to enable complete redeployment. I doubt it.

Business is always subject to fluctuations and it may be that some firms might be able to keep staff in place to weather the temporary lull in work. But that takes no account of the proposal in the White Paper to abolish section 106 altogether. No sensible employer is going to hang on to staff for whom there is no work.

Thus, in addition to what I said above, there will be a loss of tax and national insurance from those no longer gainfully employed. There is then the multiplier effect as those who are not employed cannot purchase goods and services to the same extent. They cannot move house or buy the white goods, furnishings etc that drive those part of the economy. An economic double whammy!

Are Local Authorities being set up to fail?

The proposal to impose a levy on developers may seem a good idea from an economic or financial point of view as it supposedly makes development easier to bring forward. I do wonder whether the government is simply setting local authorities up to fail by passing responsibility to them for providing the necessary infrastructure as a precursor to the government ultimately taking on responsibility on the basis that local authorities are not up to the job.

For many decades governments of all persuasions have hollowed out local authorities to the extent that the resources do not currently exist within local authorities to deliver the infrastructure that will be required to support the development proposed.

No doubt some will argue that some of those local authority officers who will no longer be undertaking planning related work can be retrained or redeployed to undertake these tasks. Some might be able to but, for others, there would have to be a complete career change for which they may not be suited.

Whilst not perfect section 106 does at least ensure that in most cases essential infrastructure is provided at the point where it will be needed to support the relevant development. I wonder how much of a credit market there will be for local authorities to borrow against anticipated receipts never mind the appetite among authorities to embark on such a borrowing spree.

One of the outcomes could then be a situation where essential infrastructure is not provided when required and local authorities will once again be blamed by government. That will not help those who have to suffer the impact of development without the necessary amelioration.

Further disengagement from the public

I act for objectors on occasion and the principal frustration for them is that the policy context is set long before a planning application is submitted. That is a fault of the system in that engagement at the stage when they might wish their voices to be heard is not what we would wish it to be. That is partly down to “consultation fatigue” as we are bombarded on a daily basis to express an opinion on various matters.

The reliance on the new local plan process will not, in my view, overcome this difficulty. When allied to the removal of the ability to object to individual proposals I fear the sense of disconnection and frustration with the system will only increase.

There is a more fundamental question that must be asked and it is this, “Do the resources exist currently to put in place the required number of local plans?” I do not think such resource exists and is unlikely to exist in the timescale envisaged for the implementation of the new proposals.

Assuming for a moment that the system is actually implemented then we should consider how many more people will no longer have the ability to contribute to the overall economic output of our economy. How attractive will a career in planning be when the job in a local authority planning department will descend into a tick box exercise to ensure that the relevant parts of the design code are met.

If we have a system of conformity then it is inevitable that the number of appeals will decrease. That, in turn, will result in a decrease in work for the planning bar and the Inspectorate. More economic pain.

I might be joining up too many dots here but we have a consultation that will remove lawyers from the planning system. We have a parallel working group looking at judicial review. I think it is a safe bet to take that the proposals will not be looking to extend this right.

Whilst prime minister Johnson and unelected president Cummings will no doubt not lose any sleep over the plight of lawyers who they perceive as making life difficult for their little project they need to think carefully about the social and economic impact of their revenge as it may have more consequences than they will have thought through.

“Build Build Build” How?

It is quite easy to come up with eye-catching slogans such a ‘Build Build Build’ but again I question whether we actually have the physical capacity to actually deliver the government’s targets.

I have already mentioned the junior members of the planning professions. They are the lucky ones in that they have jobs as opposed to those who were actively encouraged to take out loans to pay themselves to stay off the dole to obtain worthless degrees just so that they could become influencers or some such other career.

What we have consistently failed to do is to ensure that we had enough young people encouraged to pursue careers in construction and construction-related activities. The target of 50% of young people having degrees was the wrong policy and we are now once again reaping the rewards of what previous governments have sown.

The simple reality is that we do not currently have sufficient person power to construct the houses and other commercial development that will be needed to meet the White Paper aspirations.

We have previously relied on “Polish plumbers” to take up the slack but they have flown the nest and the current immigration policy does not appear to be designed to encourage those with the relevant skills to look to this country for employment. Will local authorities once again be blamed for not delivering when there simply isn’t the capacity to do so.

It will take 3 to 5 years to develop the necessary capacity provided we can change the mindset of those who do not feel that hard physical work is the way to earn a living.

How did we get here?

This section is based on political history and sets the scene for how we have gotten to where we area. I should make it clear that I do not follow any particular political ideology and have never been a member of any political party. Indeed, on occasion, I have been tempted to write “none of the above” on my ballot. I have always thought it would be a good idea to include “none of the above “ on the ballot paper as an experiment to get a snapshot for just how much contempt the public has for politicians.

That we have a housing crisis is undeniable. This crisis has been building for a very long time and in respect of affordable housing can be traced back to the decision to permit council house tenants to buy their properties often at substantial discounts of up to 60% depending upon the length of tenancy.

Of itself that might not have caused an issue if even the money that had been received had been permitted to be reinvested in replacement accommodation. That was ruled out.

As an articled clerk (no trainees in those days) one of the tasks I did was to convey these properties to the relevant purchasers. Of course, there was a short term hiccup with some of the houses as it was discovered that the so-called “system built houses” were deficient and required extensive repairs. Instead of adopting the usual caveat emptor provisions and in order to continue with the political bribe councils were then required to repurchase them. Another of my tasks was to buy these properties back, not at the original price paid but at the then market value with the money for repurchase coming from the proceeds of the sale of council housing.

Right to buy was driven by an ideology that was rooted in an intense dislike (I am being kind) of local government.

The long term effects are obvious and unless and until Government steps in and actually provides the funding to provide more affordable housing the problem will not go away. I have already drawn attention to the recent research showing that we need 95,000 new affordable homes every year just to stand still.

The White Paper tells us that at present the section 106 regime is actually providing less than a third of that number. With interest rates as low as they are would it not be a worthwhile exercise for the government to borrow to build build build as well as providing funding to develop the skills needed to build build build. That would surely be better than dismantling a system based on a dislike of local government and the following of another ideology that will not actually produce anything other than further pain and suffering for society.

A quick way forward

Section 106 agreements can take time to negotiate for a variety of reasons. Some of these relate to unreasonable requests from local authorities (I was recently joking with Charlie Banner QC about a requirement for Heritage Themed Street Name Plates in a section 106 agreement) whilst other delays are caused by applicants trying to browbeat the local authority to accept less than is required.

In many cases, the lawyers can contribute to the delay as well. I once had a case where a simple agreement was returned to me by a London firm with 106 amendments. We rejected 102 of them.

During a discussion about the amendments, the fee earner on the other side who in many cases had simply moved wording around on the page was insistent that the amendments had to be agreed to as this would then result in the document resembling his standard form document. I politely explained that the document I had sent was in my standard form and that was the end of the matter. We are very good at trying to reinvent the wheel and cannot resist the urge to insert wording to “clarify” points.

We have had the recommended standard 106 agreement for quite a while now. Would not one solution be for the government to introduce a mandatory section 106 agreement that could only be departed from in exceptional circumstances?

That would deal with wording. Often issues arise as to what should actually go into the agreement.

In the book Planning Obligations Demystified that I wrote with Meyric Lewis, we drew attention to the many “social” requirements that authorities seek to introduce such as apprenticeship levies and local labour requirements to name but two. These cannot meet the tests in the CIL Regulations. These are often accepted by applicants as there is no effective means of challenge other than via appeal which would not be cost or time effective. Yet a solution already exists on the statute books.

Section 158 of the Housing and Planning Act 2016 introduced a dispute resolution mechanism for dealing with such situations. Despite a consultation on how the system might operate in practice, the government has yet to bring these provisions into force.

A simple solution might be to, first of all, introduce these provisions and permit the process to be triggered when the dispute arises rather than after the expiry of the statutory period for determination of the application. The government could also specify matters that cannot be included in agreements. A simple solution which is why it probably hasn’t been adopted.

Grumpy old man

If I have come across as a grumpy old man then maybe that is just how I feel at the moment as I feel that the changes are driven more by ideological purity than sensible proposals which is what they should be. I just felt that the implications that are not always thought about are given some air time.

We Can Help You

For further details about anything mentioned above or require advice about the Planning White Paper, please contact Bob McGeady on bob.mcgeady@ashtonslegal.co.uk or call 07714 281254.

We are able to assist you on any planning law matters, please get in touch with our specialist Planning Law team through this website or by calling 0330 404 0778.


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