Let’s not use the term “red tape”. It is a value-laden term liked by politicians as it suggests that we are all tied up by unnecessary bureaucratic procedures which have arisen by way of inefficient administrative processes, when the truth is that our planning system (and every other arm of government I would therefore guess) is over-burdened with procedures that have been entirely driven by short term political aims – introduced with no rigorous testing and little understanding of their likely effects.
The previous government’s “Red Tape Challenge” produced a long list of regulations to be scrapped but in my view has ultimately made little difference. No lessons have been learned.
The current government supposedly has a “Cutting Red Tape” programme with proposals awaited in various areas, including “house building” and “local authorities” but I do not sense any great activity. Indeed, it is clear from the government’s vacuous and condescending twitter feed @CutRedTapeUK that nothing much is happening.
So what would I scrap? These are just some examples:
The vacant building credit
It was never an idea that had any logic (being in practice only of benefit to schemes that were already viable) but once first the planning policy guidance was watered down to allow for exceptions and then once the Court of Appeal in their 11 May 2016 judgment underlined that the policy necessarily could not be required to be applied automatically, it really lost any force or relevance.
The “positive and proactive” incantation
Since December 2012, following the Town & Country Planning (Development Management Procedure) (England) (Amendment No.2) Order 2012, notices for approval or refusal of planning permission now have to include a statement explaining “how, in dealing with the application, the local planning authority have worked with the applicant in a positive and proactive manner based on seeking solutions to problems arising in relation to dealing with a planning application”.
This has no effect in influencing the behaviour of LPAs whatsoever!
“Special measures” applications
The Growth and Infrastructure Act 2013 introduced a procedure for placing statistically poorly performing LPAs into ‘special measures’, enabling applicants to choose to make their planning application directly to the Secretary of State (via the Planning Inspectorate). It is high stakes for an applicant, given that there is no right of appeal from the Planning Inspectorate’s decision.
Until now the procedure has been limited to applications for major development (eg for ten or more homes). The first application using the procedure was a Gladman scheme for 220 homes in Blaby, which was rejected in July 2014. I am unsure how many other applicants have dared to follow suit. I’m not sure that I would advise it.
Since 21 October 2016, a statutory instrument has extended the procedural route to non-major planning applications as well. Untrialed, of course, so none of us know whether the procedure will remain unused or whether the Planning Inspectorate will be swamped and embroiled in fine-grained planning authority work for which they have little in place by way of the necessary procedural infrastructure.
Various neighbourhood planning procedures
It was the 5th birthday this month of the Localism Act 2011. A huge amount of work went into the legislation and the various processes that were invented. Views may differ on the concept and reality of neighbourhood plans – and I certainly believe that the assets of community value procedure unduly raises community expectations. But for the purposes of this blog post I have in my sights the Community Right to Build and Neighbourhood Development Orders.
As of February 2015 Community Rights UK asserted that only three community right to build applications had reached application stage.
In a web trawl this morning I noticed that the proposed Congresbury new village hall is the subject of an order made by North Somerset Council on 8 November 2016. Reading the independent examiner’s report, I am slightly at a loss as to how this is in any way simpler as a process than a traditional planning application.
As for Neighbourhood Development Orders, is the Cockermouth NDO made by Allerdale District Council on 10 September 2014 the sole example?
The CLG Commons Select Committee report on Community Rights (2 February 2015) highlights a number of parts of the Localism Act where there has been little take up.
Imagine the sheer waste in civil service and Parliamentary time creating these new bespoke procedures, and in each LPA then understanding and promoting them, only for them to rest almost entirely unused. Surely it’s scandalous.
And it keeps coming
Of course the new bespoke procedures keep coming. We await the secondary legislation necessary to give reality to the permission in principle procedure introduced by the Housing and Planning Act 2016.
Oh and the section 106 dispute resolution procedure introduced by the same Act.
And I say nothing of CIL ahead of the Government’s long-awaited publication of the CIL review panel’s recommendations and its response.
Simon Ricketts 26.11.16
Personal views, et cetera