Month: September 2023

BNG: One Step Closer, Two Months Back

Hey you, don’t watch that, watch this. If it hadn’t been for the pesky BBC piece at the beginning of the day, the Government’s press statement Biodiversity Net Gain moves step closer with timetable set out (27 September 2023) would have been a terrific piece of spin.

The statement announced much awaited progress on the nuts and berries of biodiversity net gain  (see eg my 2 October 2021 blog post Ecology By Numbers: Biodiversity Net Gain In The Environment Bill (and further back my 30 March 2019 blog post Biodiversity Net Gain: A Ladybird Guide).

How precisely will the complex regime introduced by the Environment Act 2021 be implemented in practice? There was good news in the statement:

“By the end of November, we will publish all guidance and the regulations including:

•              the statutory biodiversity metric, critical for calculating the correct biodiversity gain

•              the draft biodiversity gain plan template, which will help developers prepare for what they will need to complete during the planning application stages

•              the Habitat Management and Monitoring Plan template, which will set out how the improved significant on-site and off-site habitats will be managed for the long term

•              a package of Biodiversity Net Gain guidance that sets out further advice for landowners, developers, and Local Planning Authorities around their role and responsibilities in delivering mandatory Biodiversity Net Gain

These materials will ensure that developers and planning authorities have access to the necessary tools and information to effectively implement Biodiversity Net Gain in January 2024, ensuring they deliver the homes that the country needs while benefitting nature and local environments.”

The awkward bit? We weren’t just expecting the guidance and regulations, all much delayed, but November 2023 was to be when the regime was actually to be implemented! Whoops. BNG for small sites had already been pushed back to April 2024 and BNG for nationally strategic infrastructure projects was always going to be later, but since 2019 DEFRA’s position has been that the BNG regime would come into effect two years after the Act received Royal Assent (9 November 2021). Whoops again.

Of course the work is difficult – it’s a forbiddingly complex regime, quantifying biodiversity numerically and effectively creating a state-backed credits-trading system. But we all knew that – and said as much during the passage of the Bill. Back in my 2021 blog post I naively hoped that the delays in the Bill would allow progress to be made on much of this as the Bill progressed. What have the array of ministers that we have had in DEFRA and DLUHC since 2019 actually been doing?

It isn’t just the Government that needs more time to complete its homework. The system relies on local government knowing what it is meant to be doing and being sufficiently resourced to cope with its new responsibilities. Earlier in the month, the RTPI was raising concerns on behalf of its members, RTPI publishes worrying new data ahead of Biodiversity Net Gain implementation deadline (7 September 2023):

A “survey of our RTPI members found that:

  • 61% of public sector planners cannot confirm they’ll have dedicated BNG resource and ecological expertise in-house in place by November.
  • 79% of public sector planners believe that BNG practice would be improved with confirmation of additional ‘skills and staff’
  • 78% of public sector planners believe that BNG practice would be improved with additional ‘guidance, advice and support’
  • 54% of planners across the public and private sector believe that BNG practice would be improved by giving ‘case studies of best practice’”

Let’s hope they are in a better position by January.

In another part of the forest, concerns as potential unintended consequences of the BNG regime were raised by the House of Lords Built Environment Committee in its 21 September 2023 report The impact of environmental regulations on development:

“Biodiversity net gain

178.Liz Hart told the committee that the biodiversity net gain (BNG) requirement is “putting developers off brownfield sites”. Remediation of a brownfield site, such as removing contaminated soil, can have a negative impact on biodiversity irrespective of any benefits from the removal of contaminants. If the same BNG metric applies to greenfield and brownfield sites, there is no incentive to fund remediation: a developer risks making a substantial financial outlay to remediate a site only to result in potentially significant negative BNG with further investment then being required on mitigation. We heard that the development of brownfield sites may depend on larger developers building on greenfield land to create a surplus of BNG credits.

179.The Minister for Natural Environment and Land Use agreed that where remediation involved removing contaminated soil that was beneficial to wildlife it would have a negative impact on BNG. However, she suggested many brownfield sites have low biodiversity value or will be below the de minimis threshold. The Wildlife Trust disagreed, suggesting this is often “far from reality” with brownfield sites commonly being successional habitats, home to a variety of rare species.

180.Brownfield development is a key government policy supported by the public and vital to delivering homes. The Government should ensure that remediating brownfield sites is not disincentivised by biodiversity net gain requirements. Local planning authorities should be able to moderate biodiversity net gain requirements for sites on their brownfield registers.”

I have a sense that implementation of this regime is only going to be the start. In the meantime, even this relatively short two months’ delay (assuming the latest commitment is met) sends another really poor signal as to (1) this Government’s ability to deliver on its promises and (2) as to the lack of priority that it would appear to be giving to the environment.

Simon Ricketts, 30 September 2023

Personal views, et cetera

It’s All About The Actual Logistics

Repeat after me: the planning system isn’t just about housing. 

Any country needs adequate modern space for ensuring that goods of every description, basically everything around us, can be efficiently and quickly delivered to their destination. Of course we are more reliant than ever on complex, often international, supply chains and in recent years we have seen how sensitive they are to disruption. Locational, operational and energy efficiency is also key to minimising the costs which ultimately will be borne by the consumer. We know all this. And yet somehow there’s a disconnect when we need to think about planning for the necessary floorspace, whether in large modern, often highly automated, high-bay warehouses or in “last mile” urban logistics hubs. 

Last year the British Property Federation, in conjunction with Savills, published a great explainer document, Levelling Up – The Logic of Logistics.

And so it was heartening to see the Department for Transport’s Freight and logistics and the planning system: call for evidence, published on 4 July 2023, with a deadline of 6 October 2023. It seeks evidence in three main areas:

  • local plan making and land availability
  • planning decision taking and the applications process
  • how the planning system can support specific policy priorities, including:
    • supporting supply chains
    • decarbonisation of freight
    • heavy goods vehicle (HGVs) driver parking facilities and welfare
    • strengthening the Union

I know that the DfT is very much wanting to hear positive suggestions as to how the system can be made to work better.

Last Tuesday my Town Legal colleague Paul Arnett recently co-hosted, alongside Quod, a roundtable meeting attended by a number of operators and developers in the sector, together with those in the public sector. 

Some interesting comments were made. For instance:

  • Conceptually the way in which the local plans system struggles, without a more strategic plan making tier, with assessing and planning for the larger than local need for logistics space. Often the need for development at particular locations is driven by geography and road/rail/port access rather than particular local needs, unlike with perhaps housing and other forms of employment development. 
  • The current failings of the NSIP process, save in the case of strategic rail freight. 
  • Other calls on space, by way of for instance data centres and dark kitchens, reducing that which is available for freight and logistics. 
  • The benefits of clustered development, several facilities in one location, in terms of employment, public transport and power. 
  • The challenges in making the case to local planning authorities for the associated facilities required, for instance in some locations a higher than usual level of car parking to allow for occupiers with workers on night shifts and for the overnight re-charging of electric vehicles (in the case of operators who traditionally may have expected staff to store their petrol or diesel vehicles at their homes overnight). 

There was much talk of the challenge of securing sufficient power, by way of connections to the national grid and how critical this has become, with many operators already making the move to all electric fleets, and with of course the extent of roof PVs.

The discussion became topical when the prime minister was bounced by leaks into making his speech on net zero the next day (20 September 2023). 

I had come out of that roundtable session wholly enthused by the degree to which the corporate participants were so advanced with their thinking on decarbonisation and net zero. To listen the next day to Rishi Sunak was like going back in time (for some of us it probably triggered memories of the scrapping of the code for sustainable homes at a time when the house building industry was well on the way to  delivering on what was being required – these sorts of changes to previously announced regulatory changes are debilitating to business in a way that governments do not seem able to grasp). Maybe I’ll leave further commentary on that particular statement to another place, save for highlighting one positive passage from that speech: 

“Right now, it can take fourteen years to build new grid infrastructure.

There are enough projects waiting to be connected to generate over half of our future electricity needs.

So, I can announce today that the Chancellor and Energy Security Secretary will shortly bring forward comprehensive new reforms to energy infrastructure.

We’ll set out the UK’s first ever spatial plan for that infrastructure to give industry certainty and every community a say.

We’ll speed up planning for the most nationally significant projects.

And we’ll end the first-come-first-served approach to grid connections by raising the bar to enter the queue and make sure those ready first, will connect first.”

Spot-on. Now let’s make all that happen. Because it is all about the actual logistics. 

Simon Ricketts, 23 September 2023

Personal views, et cetera

Extract from cover of BPF/Savills Logic of Logistics document

NN No

I may have been one of the first to blog on the nutrient neutrality issue in my 29 June 2019 blog post Another Green World: The South Coast Nitrate Crisis

Another Green World: The South Coast Nitrate Crisis

To quote from what I wrote over four years ago:

“I’m not sure that anyone can blame the EU, or lawyers, or local authorities, or developers, but no doubt they will. Rather, the problem arises from the apparent lack of adequate measures to ensure that, by virtue of its nitrate content, sewage generated as a result of new development does not harm the integrity of coastal waters protected as special areas of conservation and special protection areas under the Habitats and Birds Directives. Nitrate enrichment causes green algae, harmful to protected habitats and birds, through a process known as eutrophication. The chickens … are coming home to roost following a lack of priority for too long on the need by the Government and water companies to ensure that we have adequately funded and operated waste water treatment processes”

Of course the issue subsequently spread in terms of geography and by way of concerns as to phosphates as well as nitrates, hence references now to “nutrients”. (There are also related situations in relation to water neutrality in Sussex and in relation to recreational pressures on particular SACs – see my 9 October 2021 blog post Development Embargos: Nitrate, Phosphate & Now Water – and in relation to nitrogen deposition on protected areas caused by traffic, eg see my 8 April 2017 blog post Heffalump Traps: The Ashdown Forest Cases – but the rest of this post focuses on nutrients). 

This Government failed for far too long to grasp the nettle and now, when it has, it has been badly stung. Surprise surprise. 

My 29 August 2023 blog post The Government’s Big Move On Nutrient Neutrality – Now We Have Seen The Government’s LURB Amendment set out the way in which the Government belatedly looked to neutralise the nutrient neutrality problem for housebuilders and others who are stuck unless and until acceptable strategic or bespoke mitigation solutions are in place, by way of an amendment to the Levelling up and Regeneration Bill. The proposal was to take to remove nutrient pollution, by way of urban waste water, out of the ambit of the “harm to protected sites” integrity test. Subtle it wasn’t. 

The Lords report stage debate on what became Amendment 247YYA took place on 13 September 2013. We all know what happened: the amendment was rejected 192 – 161. 

As I set out in my 29 August 2023 blog post on the day the amendment was published, on balance I supported it – the need for a solution now is almost overwhelming – but I identified some questions to which the Government needed to be ready with answers. 

The brutal reality is that their answers weren’t good enough, particularly on the key question – whether this amounted to a regression from current environmental standards. The day after the amendment was published, the Office Of Environmental Protection sent the Government a letter making clear its expert view that the proposal would indeed amount to regression. Nature conservation bodies rose up as one notwithstanding Therese Coffey’s response (31 August 2023)

This may be a Government that still on paper retains a majority but boy it is on the ropes. The media and public opinion joyfully conflated the nutrient neutrality issue with its justified disgust as to the poor performance of water companies in allowing the discharge of untreated sewage to rivers and coastal waters (and the failure of the Government to hold those companies properly to account). I set out in my 9 September 2023 blog post LURB Lords Latest the kicking that the Government received on the proposal in the Commons on 5 September. 

As at 5 September Labour appeared to be sitting on the fence as to whether it would support the proposal but once they came out against it on 12 September 2023 (proposing an alternative amendment which was subsequently withdrawn during the debate without a vote) I would suggest that the writing was on the wall. As a sign perhaps of the Government’s desperation,  DLUHC published a late lobbying document in the form of the nutrient neutrality announcement: explanatory paper (11 September 2023).

The Government amendment was rejected 192 votes to 161. And that folks is that. Procedurally it cannot be reintroduced into the Bill when it returns to the Commons. Nor in my view is there time for a fresh Bill. 

What lessons to draw?

  • The Government moved far too slowly. Clive Betts nailed in it the 5 September 2023 debate: “This is hardly a new problem, is it? The Court decision was in 2018, yet last year we had the levelling-up Bill, which was really a planning Bill with a bit of levelling up added on—no mention of the issue there. In December we had major consultations on changes to the national planning policy framework—no mention of the issue there. The Committee wrote to the Minister and asked how many more consultations on planning issues there would be this year. We were given nine of them—no mention of the issue there. If it is such a serious issue, why has it taken the Government so long to act? It looks like the Government are making it up as they go along. This is a panicked response from the Government to the collapsing numbers of housing starts which the Minister simply wants to do something—anything—about.”
  • As a result of moving too slowly, it brought forward a proposal which had not been tested by way of any consultation whatsoever. Nor plainly had it been the subject of any cross-party agreement. Nor it seems had the Office for Environmental Protection been asked to advise ahead of the amendment being tabled, nor indeed Natural England. Indeed Natural England have not made any public statement in support of the proposal! Isn’t this all politics 101?
  • There was no clear narrative that explained the precise nature of the eutrophication issue so as to separate it from other justified concerns over water quality. 

What now should happen?

  • Plainly the Government should re-double its efforts to work with affected authorities and with the water industry to introduce strategic measures to reduce nutrient deposition into watercourses which are protected as SACs and SPAs. 
  • Plainly it should be working with Natural England to ensure that Natural England is in a position where its advice to authorities can be that, due to its confidence that these reductions will take place within the required timescale, there will not be an adverse effect on the integrity of the relevant SPA/SAC as a result of the particular proposal. With that assurance, and perhaps with guidance that any effects arise largely from occupation rather than construction and that therefore there is a role for planning conditions which at least allow developers to get on with construction if they are prepared to take the risk that reductions will take place in time for occupation, there is no need whatsoever for legislation. 
  • Other neutrality issues should receive equivalent focus. It’s not all about nutrients. 
  • Why don’t I finish with a controversial idea? If, in the face of expert advice to the contrary, planning applications are still held up, why doesn’t the Secretary of State call in the relevant application, in which case he becomes the competent authority in place of the local planning authority when it comes to determining whether there is an adverse effect on the integrity of the relevant SPA/SAC?

This coming week’s Lords Built Environment Committee report on the impact of environmental regulations on development will make interesting reading. We haven’t really even started to talk about environmental outcomes reports…

Simon Ricketts, 16 September 2023

Personal views, et cetera

The Guardian, 14 September 2023

LURB Lords Latest

The Levelling-up and Regeneration Bill resumed its progress through Report stage in the House of Lords this week, with sessions on 4 and 6 September. This post seeks to identify the main amendments made in those sessions.

I know what you’re all asking – what about the Government’s late proposed amendment to address the nutrient neutrality issue (see my 29 August 2023 blog post The Government’s Big Move On Nutrient Neutrality – Now We Have Seen The Government’s LURB Amendment)? That will be debated at a further session next week, on 13 September 2023. The proposed amendment was in the meantime the subject of an urgent question tabled in the House of Commons by the Green Party’s Caroline Lucas on 5 September 2023. The debate is interesting as a hint of what awaits both in the Lords on 13 September but then once the Bill returns to the Commons for its final stages:

  • The Speaker agreed that the urgent question was appropriate notwithstanding the Secretary’s written ministerial statement the previous day: “I expect Ministers to come to the House, as I did not think a written ministerial statement was the way to inform the House.”
  • On being challenged that the amendment amounted to a regression from current standards of environmental protection, the minister, Rachel Mclean responded: “It is important to consider what we are talking about here, which is unblocking 100,000 homes that add very little in terms of pollution. To be clear, our approach means that there will be no overall loss in environmental outcomes. Not only do the measures that we are taking address the very small amount of nutrient run-off from new housing, but at the same time, we are investing in the improvement of environmental outcomes. We do not agree that this is regression on environmental standards. We are taking direct action to continue to protect the environment and ensure that housing can be brought forward in areas where people need it.”
  • A nuanced question from shadow minister Matthew Pennycook:

“As a result of the Government’s failure over many years to make decisive progress in tackling the main sources of problem nutrients, namely farming and waste water treatment works, the requirements for nutrient neutrality in sensitive river catchments present a challenge to securing planning permission for new housing development. It is therefore right in Labour’s view that the operation of the rules around nutrient neutrality is reviewed with a view to addressing problematic delays and increasing the pace at which homes can be delivered in these areas.

However, we have serious concerns about the approach that the Government have decided on. Not only does it involve disapplying the Conservation of Habitats and Species Regulations 2017, but it does not legally secure the additional funding pledges to deliver nutrient management programmes and does not provide for a legal mechanism to ensure that housing developers contribute towards mitigation.

I put the following questions to the Minister: what advice did the Government receive from Natural England about potential reform of the laws around nutrient neutrality? Did it offer a view on the Government’s proposed approach? Given the amount of mitigation currently available in the pipeline, which is estimated at allowing for approximately 72,000 homes, did the Government consider an approach based on the habitat regulations assessment derogation and a revised credit mitigation system to front-load permissions and provide for future compensatory schemes? If so, why did they dismiss that option? What assessment have the Government made of the impact of their proposed approach on the nascent market in mitigation credits, and investor confidence in nature markets more generally? Why on earth do Ministers believe developers will voluntarily contribute to mitigation under the proposed approach?

Finally, the Government claim their approach will see 100,000 planning permissions expedited between now and 2030. Given that house building activity is falling sharply and the pipeline for future development is being squeezed—not least as a result of housing and planning policy decisions made by this Conservative Government—what assessment has the Department made of the number of permissions that its disruptive approach will unlock within the first 12 months of its operation?”

  • A rather pithy summation of the position, from the chair of the Levelling Up, Housing and Communities Committee, Clive Betts:

“This is hardly a new problem, is it? The Court decision was in 2018, yet last year we had the levelling-up Bill, which was really a planning Bill with a bit of levelling up added on—no mention of the issue there. In December we had major consultations on changes to the national planning policy framework—no mention of the issue there. The Committee wrote to the Minister and asked how many more consultations on planning issues there would be this year. We were given nine of them—no mention of the issue there. If it is such a serious issue, why has it taken the Government so long to act? It looks like the Government are making it up as they go along. This is a panicked response from the Government to the collapsing numbers of housing starts which the Minister simply wants to do something—anything—about.“

Turning now to the Report sessions on 4 and 6 September 2023 , I set out below the main amendments agreed upon (subject to them surviving the return of the Bill to the Commons). The full list of amendments is much longer and for the detail you can click on the following:

Hansard debate 4 September 2023

Minutes to proceedings 4 September 2023

Hansard debate 6 September 2023 (Part 1)

Minutes to proceedings 6 September 2023 (Part 1)

Hansard debate 6 September 2023 (Part 2)

Minutes to proceedings 6 September 2023 (Part 2)

[Many thanks to my Town Legal colleague Amy Penrose for detailed work on all this].

Amendment 184A

This amendment clarifies that inserted subsection (5B) in section 38 of the Planning and Compulsory Purchase Act 2004 requires a determination under the planning Acts to be made in accordance with the development plan and any national development management policies, taken together.

So the replacement to section 38 (6) would now read: “the determination must be made in accordance with the development plan and any national development management policies taken together, unless material considerations strongly indicate otherwise”. What does “taken together“ add? Perhaps to avoid an interpretation that the determination needed to be both in accordance with the development plan and in accordance with any national development management policies – instead look at it all together in applying planning judgment as to whether the determination is in accordance? It’s great being a lawyer.

Amendment 190 (tabled by Baroness Thornhill) – voted through against the Government 186 – 180

The amendment requires the Secretary of State to carry out a sustainability appraisal before designating a national development management policy; it must comply with public consultation requirements and a process of parliamentary scrutiny based on processes set out in the Planning Act 2008 (as amended) for designating National Policy Statements, and it must contain explanations of the reasons for the policy, including an explanation of how the policy set out takes account of Government policy relating to the mitigation of, and adaptation to, climate change.

Amendment 191 (tabled by Lord Ravensdale) – voted through against the Government 182 – 172

The amendment places a duty on the Secretary of State and relevant planning authorities respectively to have special regard to the mitigation of, and adaptation to, climate change with respect to national policy, local plan-making and planning decisions.

Amendment 191A (tabled by Lord Crisp) – voted through against the Government 158 – 149

The amendment specifically places a duty on the Secretary of State to promote healthy homes and neighbourhoods – a huge success for the Town and Country Planning Association’s Campaign for Healthy Homes.

(see also a detailed Schedule to be inserted into the Bill setting out for instance what is meant by healthy homes principles – amendment 191B).

Amendment 193A (tabled by Lord Best) – voted through against the Government 173 – 156

The amendment requires local plans to “identify the local nature and scale of housing need in the local planning authority’s area and must make provision for sufficient social rent housing, to eliminate homelessness within a reasonable period as stipulated in the updated local plan, and to provide housing for persons registered on the local housing authority’s allocation scheme within the meaning of section 166A of the Housing Act 1996.” It would apply both “in relation to social housing provided both by the local housing authority where it retains its own housing stock and by private registered providers of social housing”.  The information would need to be updated at least annually.

These are all significant interventions. Let’s see the approach that the Government takes back in the Commons. A motion will also be needed to carry over the Bill to the next Parliamentary session, without which we will see (wait for the LURB pun, wait for it, wait) .. LURB’s labours lost.

Simon Ricketts, 9 September 2023

Personal views, et cetera

Photo courtesy of Peter Kostov via Unsplash

Quids No Pros

If you pay planning application fees, or are a planner whether private or public sector, you may feel somewhat cheated by the Government’s 25 July 2023 response to its February 2023 technical consultation Stronger performance of local planning authorities supported through an increase in planning fees.

The development sector has made it clear for a long time that it is generally willing to pay more to planning departments by way of increased planning application fees if the money enables those departments to be better resourced. Accordingly there was widespread support for most of the proposals within the consultation paper. The whole thrust of the consultation paper was that the government accepted that “local planning authorities need more resource in order to perform their critical social, economic and environmental functions on planning effectively”. Also that the government was “only prepared to introduce fee increases if planning performance also improves. We want to ensure that all applicants experience a high-quality and timely service. This consultation therefore also proposes a new approach to how the performance of local planning authorities is measured across a broader set of quantitative and qualitative measures. This will provide greater transparency of service delivery and earlier and more targeted support to local planning authorities where needed.”

Obviously significant increases in planning application fees would not be likely to lead to improvements in the operation of the system, and indeed would simply place a more onerous financial burden on applicants, if the additional income were not ringfenced to be spent on maintaining or improving planning services. Whilst improved performance may not all be about money, when it comes to significant hikes in planning application fees, more money, better services, that’s the quid pro quo.

The consultation document addressed the issue directly:

“The purpose of planning application fees is to enable a local planning authority to perform the statutory function of processing planning applications. However, we recognise that planning budgets are not ringfenced which means that planning fees often can be diverted as part of a wider corporate budget priorities to support other council services. This can limit the benefit of any increase in planning fees.

To ensure that the proposed additional fee income directly supports increased resourcing of local authority planning departments, it is sometimes suggested that planning fees should be ringfenced to planning services only. This would enable direct improvements in service delivery but does undermine the general flexibility afforded to local authorities on their wider financial management. We are seeking views on whether the additional income arising from the proposed fee increase (35% for major applications, 25% for all other applications) should be ringfenced for spending within the local authority planning department. Past increases have required a written commitment from all local planning authorities in advance of implementation.”

The question was asked:

“Question 7. Do you consider that the additional income arising from the proposed fee increase should be ringfenced for spending within the local authority planning department?

Yes/no/don’t know. Please give your reasons.”

The response document sets out the significant increases that are to be introduced by way of draft Regulations laid before Parliament on 20 July 2023 – basically:

  • Application fees for major development (broadly speaking 10 dwellings or more or if non-residential 1,000 sq m or more) to be increased by 35% and for other forms of development by 25%.
  • Annual inflation indexation from 1 April 2025.
  • Removal of the “free go” (for repeat application within 12 months).

The response document records that the responses to the consultation document were “generally very supportive of the measures to increase planning fees, recognising the importance of securing additional income for local planning authorities”. But hang on! Look at the response to question 7, as to whether the additional income should be ringfenced for spending within the local authority planning department:

“A total of 457 respondents answered this question. There was strong support for this proposal to ringfence the additional income generated by the increase in fees. 88% agreed with the proposal, 8% did not and 4% didn’t know.

Respondents considered that ringfencing was needed to justify the increase in fees and to ensure the additional resources directly lead to improvements in performance. The extra income could be used to expand planning teams (by providing higher salaries to attract planners from private sector, training and development of planners) and improve IT systems. Many suggested that all fee income should be ringfenced for planning. On the implementation of ringfencing, others commented that resources were needed across other areas of the local authority which provided input into planning decisions, including highways, environmental health, ecology, design, drainage and heritage, so any ringfencing conditions needed to be flexible enough to allow these to be funded too.

Those who did not agree were concerned that ringfencing removed flexibility over spending decisions from local authorities. Some were concerned that ringfencing could be difficult to implement and monitor. Some considered that local planning authorities may not end up with more resources if the projected additional fee increase was netted off the baseline budget.”

88% per cent in favour. A no brainer in the circumstances one would think.

The Government’s response?

“We welcome the strong support for this proposal. We want to ensure that the fee increase results in additional funds being available to local authority planning departments, but we will not take ringfencing forward through legislation as this would impose a restriction on local authorities when they are best placed to make decisions about funding local services, including planning departments. However, we would expect local planning authorities to protect at least the income from the planning fee increase for direct investment in planning services.”

No ring-fencing. It will be left to local authorities to make that decision..

This is hugely unfair. It is unfair on local authorities with severe financial constraints such that they will need to consider whether they can afford to ringfence these monies on a voluntary basis or to use them to maintain other statutory services. No doubt heads of planning will have a limited say in that particular tug of war. It is also unfair on applicants because this significant hike in fees was to secure stronger performance from local planning authorities (see the very name of the consultation document!) – that is the only reason why it was supported.

The other important element of the proposals consulted upon was the proposed introduction of a series of new detailed metrics against which local planning authority performance can be measured. Whilst I recognise that the information gathering in itself would have been onerous, we know that what’s measured does get valued and the statistics would be useful both internally within authorities (so as to make the case for better resourcing) and externally to drive better performance. The government’s response again is in my view rather a cop-out:

“In relation to planning performance, we are grateful for the wide range of comments that have been received, relating to how we can better assess the speed of decision-making through both amending existing metrics and introducing new ones, and in response to proposed new quantitative metrics which could allow performance to be measured more widely across a range of important planning functions. We are also grateful to hear a range of feedback on our proposals to introduce qualitative metrics, including customer experience, which could capture a more holistic picture of the quality of service delivery within planning departments. This feedback is highly valued and will be drawn upon as we develop our proposals for a new planning performance framework.

We are clear that an increase in planning fee income and resourcing to local planning authorities must lead to improved performance. It is our intention to introduce a new planning performance framework once we have increased planning fees and invested in supporting the capacity and capability of planning departments. However, we recognise that local planning authorities need a period of adjustment to any new planning performance framework, and we would reiterate our commitment to consult further on detailed proposals, including thresholds, assessment periods and transitional arrangements from the current performance regime.”

There is no reason why performance measurement should not start now – let’s get to the bottom of how bad the problems currently are. It’s almost as if the Government doesn’t want to find out…

I know the Government will point to different funding streams it is making available to support capacity and capability in planning departments, for instance to the statement in Michael Gove’s long-term plan for housing 24 July 2023 announcement that the government is taking other steps to “unblock the bottlenecks in the planning system that are choking and slowing down development, and stopping growth and investment by:

  • Launching a new £24 million Planning Skills Delivery Fund to clear planning backlogs and get the right skills in place.
  • Establishing a new “super-squad” team of leading planners and other experts charged with working across the planning system to unblock major housing developments, underpinned by £13.5 million in funding. The team will first be deployed in Cambridge to boost our plans in the city, before also looking at sites across our eight Investment Zones in England, to provide high-quality homes to go alongside the high-quality jobs being created there.”

That is cautiously welcomed. But it does not change my three conclusions:

  • Personally I think that the “no ringfencing” decision should be re-considered.
  • Surely we need better performance metrics now, not some time in the indeterminate future
  • There really does appear to be little point in responding to Government consultation processes when a 88% response one way or the other ultimately counts for nothing (and when perhaps a substantial proportion of the 88% would have responded differently to the questions about application fee increases if the assumption had been that the increases would not be ringfenced).

Plenty of quids, no pros.

Final thought – the Government has previously floated, in Planning for the Future, the idea of introducing planning appeal fees. Personally, my view is that if the fees genuinely increased resources and sped up the system, why ever not? Nothing else comes free.

Simon Ricketts, 1 September 2023

Personal views, et cetera

Image courtesy of Christopher Bill via Unsplash