10 Reasons Why Planning Lawyers Are So Busy (And Maybe Shouldn’t Be)

The statistics are clearly going in the wrong direction: fewer public sector planning officers (see eg Labour’s pledge to hire 300 planning officers fails to make up for staff exits (FT, 2 June 2024, paywall or free registration) and an increasing number of private sector planning solicitors (The biggest planning law firms 2024 , Planning Resource, June 2024, paywall).

There you have it as to the two overwhelming problems with the current planning system:

• Stretched public sector resources.

• An increasingly complex and legalistic regulatory framework.

 I was reflecting on that second element this week at a really great “Planning Question Time” event in Exeter arranged by Carney Sweeney.

I’ve never been one to label all regulation as “red tape”. It’s not “red tape” if it serves a necessary purpose which is justified in the public interest. But this country is increasingly drowning in bureaucracy, and I stand before you as the living embodiment of it.

Town Legal has 12 partners, 28 qualified solicitors in total specialising in planning – and we are not the largest.

When I started as a lawyer in the 1980s I’m not sure there were too many more planning solicitors than that in the whole of the City! I don’t have 1980s figures, but going back just to say 2000-2001 the position in London is set out in the Chambers Directory table below. The largest team by far at that time was Berwin Leighton (now part of BCLP): 4 partners, 16 planning lawyers in total, followed by Denton Wilde Sapte (now Dentons): 3 partners, 13 planning lawyers in total – the bulwark of those firms’ practices at the time being work for their respective clients Tesco and Sainsbury’s. No other firms were in double figures. Now there are 25 firms with more than 10 planning solicitors!

Chambers Directory 2000-2001

Extract from Planning Resource survey, June 2024

According to the Planning Resource survey, the number of private sector planning solicitors increased by 8% just last year! This is not a good thing. 

What on earth is keeping so many planning lawyers busy, even in an environment when the number of planning applications has been falling, and does it have to be this way?

These are some of the issues that keep me constantly busy, most of simply did not exist 20 or 30 years ago:

1. Advising on the procedural hurdles to amending schemes and the work-arounds to all that case law – Finney, Hillside, Dennis, Fiske and so on.
2. Advising as to how to keep permissions alive by way of token implementation works, partly a factor of constant issues in relation to viability.
3. Every aspect of the community infrastructure levy.
4. Procedurally rigid appeals, many of which could have been avoided, often generated either by members’ refusals against officers’ advice or by unacceptable delays in the application process (see the point as to stretched public sector resources above – including at statutory consultees such as the Environment Agency and Natural England as well as at local authorities).
5. Resisting (and sometimes promoting) judicial reviews that often turn out to be unsuccessful, partly fuelled by objectors’ expectation that rights have been infringed for which litigation will provide an adequate remedy – and the consequent now increasingly usual and time-consuming task, on more complex or contentious proposals, of carrying out a legal audit of draft application documents and committee reports to minimise legal challenge risk. 
6. Unnecessarily repetitive negotiations in relation to section 106 agreements through the lack of national standard templates, alongside the widened scope of planning obligations and drafting sophistication that has arisen hand in hand with both item 10 below; the sheer scale of financial commitments now at play, and yes that public sector resourcing issue again, meaning that many authorities are simply not equipped to progress negotiations in a timely way, particularly in relation to more complex projects.
7. The increasingly labyrinthine complexities of the permitted development rights system. 
8. Constantly changing legislation and policy and the case law arising from inherent ambiguities in how statutory and/or policy tests are to be applied.
9. Localism: neighbourhood plans, assets of community value and so on.
10. Topics that have been shoe-horned into the planning system to deliver on other government objectives eg

• Embodied carbon – demolition versus refit (no clear national policy yet)
• Biodiversity net gain (the latest over-engineered statutory regime)
• The neutralities (nutrients, water, recreational pressure)
• Building safety and the widening increasingly unclear overlap between the Building Regulations and the planning system.
• (whispers it) Affordable housing requirements (building market homes doesn’t lead to an additional need for affordable housing – it’s just politically convenient government policy to require it) and contributions to other public services (which successive governments have increasingly chosen to fund in part via developers rather than by way of direct taxation). 

Much of this of course is in the public interest and has value. Most schemes which come forward are far more considered and of higher quality than back when I started.

But I do wonder at what cost. 

Here’s an idea for Planning Resource: How about publishing an annual metric, being the ratio of homes and square metres of floorspace delivered in England over the relevant year divided by the number of practising planning solicitors in the private sector? I’m not wanting to do us out of a job. It would just be nice to be more productive…

Lastly, nostalgia for some of us: commentary from the 1994/1995 Chambers Directory. The scary new thing that was direct professional access to the bar! And some names to conjure with – all those names were, and in some cases still are, bright stars in our once little planning law world.

Chambers Directory 1994-1995

Simon Ricketts, 15 June 2024

Personal views, et cetera