The Devolution Dance: The Planning White Paper & Local Government Reorganisation, Neighbourhood Planning

A quick two-step:

1. Given its relevance to the proposals in the planning white paper, what is the Government’s current thinking on local government reorganisation (details of which are to be set out in the devolution and local recovery white paper)?

2. What role is envisaged for neighbourhood planning in the planning white paper?

Local government reorganisation

The planning white paper’s proposal that each district and borough be handed by MHCLG its own local housing need figure to meet in its plan would clearly be more manageable by Government if there were to be fewer districts and boroughs, or if there were to be more joint planning arrangements and Mayor-led combined authorities (“We also propose that it would be possible for authorities to agree an alternative distribution of their requirement in the context of joint planning arrangements. In particular, it may be appropriate for Mayors of combined authorities to oversee the strategic distribution of the requirement in a way that alters the distribution of numbers, and this would be allowed for.”).

Perhaps we are all putting two and two together and making five but there has been some expectation that with Strictly Come Dancing style choreography the devolution and recovery white paper would sashay in any moment now to propose the acceleration of the current process that has been underway in recent years, locally driven through funding constraints, of the ad hoc amalgamation of individual districts and boroughs into new unitary authorities.

Not quite panic on the dance floor but this prospect is causing temperatures to rise in various quarters, e.g. Leader denies Surrey plan to create largest unitary council in England is ‘county power grab’ (Surrey Live, 5 September 2020) (“Waverley Borough Council’s leader has denounced a county council proposal to create the largest unitary authority in England as “a disaster” and “a power grab by Surrey that should be resisted at all costs“.), Lancashire councils face abolition in shake-up (BBC, 29 July 2020) (“One senior Conservative figure in Lancashire argued the three-way division risked a “bloody civil war” within the party locally.”).

Before having to resign from Government on 8 September 2020, Simon Clarke was the MHCLG minister overseeing the white paper. He gave a speech to the Northern Powerhouse Summit on 15 July 2020:

“This September, the government will therefore be publishing the Devolution and Local Recovery White Paper…which will lay a clear path for levelling up every region of our country.

It will provide a roadmap for establishing a series of new mayors within the next ten years – representing the greatest decentralisation of power in our modern history.

In our towns, cities, and rural counties, we will give local places the ability to come forward with new mayoral devolution deals which work for every community, allowing them to become masters of their own destiny.

The White Paper will also redefine the way in which local government serves its communities by establishing the unitarisation of councils as a vital first step for negotiating these mayoral devolution deals in the future.

A move to unitarisation will streamline the delivery of good governance…”

Strong stuff. But then, possibly in the light of Clarke’s departure, the rumours started that the devolution and recovery white paper was to be delayed – the MJ reported that it was due to be published in October, during the week of the Conservative party conference, but has been “put on the back burner, pending a rethink”. See also LGCplus’ piece on 21 September 2020: Ministers accused of ‘starting fires and walking’ as reorganisation momentum collapses.

The rumours as to timing appear to be inaccurate, given MHCLG minister Lord Greenhalgh’s response to a question in the House of Lords on 22 September 2020:

“We intend to publish the devolution and local recovery White Paper the autumn. This will set out our plans for expanding devolution across England to support economic recovery and levelling up, building on the success of our directly elected combined authority mayors.”

But are we to see a watering down of the strong armed “unitarisation as a vital first step towards mayoral devolution deals” messaging of that Clarke speech? In Greenhalgh’s subsequent responses to questions in the same 22 September session, he seems to play down how radical the proposals will be:

“We are not looking at top-down devolution, but focusing on local city and growth deals as the way forward. We are not looking at top-down devolution, but focusing on local city and growth deals as the way forward.”

“… there will be no blanket abolition of districts and that we will take a locally driven approach and ensure that decision-making is taken as close as possible to the people we are serving.”

So possibly not the big bang argued for in a Centre for Cities report, Levelling up local government in England (11 September 2020), which proposed “redrawing the English political map, replacing the 348 existing authorities with 69 unitary or combined ones with greater powers and resources and whose political boundaries match the economic geography in which people live and work.”

“ • Everywhere will reform — all two-tier systems will be reformed to become single tier, while economic powers held in the lower tier of Mayoral Combined Authorities will move up

• Everywhere will have a directly-elected leader — voters will have a clear choice about who will be in charge and they will have clear four-year mandate to act

• Local government boundaries will match local economic boundaries — they will always be blurry, but the aim should be to contain as much of the local economy within the local authority area as possible — that is the area over which most people locally work and live their lives

• Local government will have the capacity to govern effectively while remaining local — economic powers should be held by local governments covering at least 300,000 people and no more than 800,000. This is to strike a balance between covering the local economy and maintaining a connection with local people and businesses. Lower-tier authorities in Greater London and where there is a Mayoral Combined Authority will focus on personal services and may be smaller than 300,000 people”

Could local government seriously cope with such wholesale change at the same time as swallowing a significantly changed planning system? Is it right to require local authority amalgamations as a pre-condition of funding? Does large scale unitarisation leave a local democratic deficit? But, on the other hand, can the system proposed in the planning white paper have a hope of working with so many individual authorities and without even the current discipline, wonky as it is, of the duty to co-operate? And, for London, what will be the role of the Mayor of London?

Of course, as we move towards larger unitary authority areas, thoughts turn to the potentially increased role for neighbourhood planning.

Neighbourhood planning

Someone asked me last week to summarise what the planning white paper meant for neighbourhood planning – would it end up with a greater or a reduced role under the new system? Not an easy question to answer on the basis of what is said in the document but I think we can at least deduce the following:

• neighbourhood planning is to be retained;

• it will in some ways have an enhanced role, including potentially in relation to the preparation of design guides and design codes;

• the Government appears serious about making community engagement more effective, through, for instance, greater use of technology;

• the neighbourhood share of CIL (up to 25%) will be retained under the new combined infrastructure levy;

• but in other ways the communities will have less influence through neighbourhood planning, (1) partly as a consequence of overall housing numbers for local authorities being imposed by Government, (2) partly through development management policies being standardised nationally through the NPPF and (3) partly as a consequence of various types of development approval being removed from the traditional planning application process (for instance growth areas in local plans having the equivalent of outline planning permission and by further expansion of permitted development rights).

There are only two proposals in the white paper that directly focus on the role of neighbourhood planning:

“Proposal 9: Neighbourhood Plans should be retained as an important means of community input, and we will support communities to make better use of digital tools

Since statutory Neighbourhood Plans became part of the system in 2011, over 2,600 communities have started the process of neighbourhood planning to take advantage of the opportunity to prepare a plan for their own areas – and over 1,000 plans have been successfully passed at referendum. They have become an important tool in helping to ‘bring the democracy forward’ in planning, by allowing communities to think proactively about how they would like their areas to develop.

Therefore, we think Neighbourhood Plans should be retained in the reformed planning system, but we will want to consider whether their content should become more focused to reflect our proposals for Local Plans, as well as the opportunities which digital tools and data offer to support their development and improve accessibility for users. By making it easier to develop Neighbourhood Plans we wish to encourage their continued use and indeed to help spread their use further, particularly in towns and cities. We are also interested in whether there is scope to extend and adapt the concept so that very small areas – such as individual streets – can set their own rules for the form of development which they are happy to see.

Digital tools have significant potential to assist the process of Neighbourhood Plan production, including through new digital co-creation platforms and 3D visualisation technologies to explore proposals within the local context. We will develop pilot projects and data standards which help neighbourhood planning groups make the most of this potential.”

“Proposal 11: To make design expectations more visual and predictable, we will expect design guidance and codes to be prepared locally with community involvement, and ensure that codes are more binding on decisions about development.

“As national guidance, we will expect the National Design Guide, National Model Design Code and the revised Manual for Streets to have a direct bearing on the design of new communities. But to ensure that schemes reflect the diverse character of our country, as well as what is provably popular locally, it is important that local guides and codes are prepared wherever possible. These play the vital role of translating the basic characteristics of good places into what works locally, and can already be brought forward in a number of ways: by local planning authorities to supplement and add a visual dimension to their Local Plans; through the work of neighbourhood planning groups; or by applicants in bringing forward proposals for significant new areas of development.”

Many of you know much more about local government and neighbourhood planning matters than me – all comments welcome (even if we’re just dancing in the dark).

Simon Ricketts, 25 September 2020

Personal views, et cetera

Salsa made easy.

Blue Christmas

Duncan Field, Victoria McKeegan and I were speculating in our 16 December 2019 planorama vlog as to what the new Government’s legislative programme and policy priorities are likely to be in relation to planning, infrastructure and the environment

We now have the blueprint, in the form of the Queen’s Speech on 19 December 2019 and particularly the 151 pages of background notes published the same day.

There is going to be an “ambitious” planning white paper in due course, but what is promised in the meantime in this very blue paper that these notes represent? The government has little excuse not to deliver on what it has set out, given the size of its majority. The most relevant references are as follows:

Housing (pages 48 to 50):

My government will take steps to support home ownership, including by making homes available at a discount for local first-time buyers.”

The Government will support people to realise the dream of homeownership. One of the biggest divides in our country is between those who can afford their own home and those who cannot.

The Government will shortly launch a consultation on First Homes. This will provide homes for local people and key workers at a discount of at least 30 per cent – saving them tens of thousands of pounds.

The discount on First Homes will be secured through a covenant. This means these homes will remain discounted in perpetuity, supporting people now and in the future who aspire to own a home of their own.

The Government will also renew the Affordable Homes Programme, building hundreds of thousands of new homes for a range of people in different places. This will help us prevent people from falling into homelessness while also supporting further people into homeownership.

We will introduce a new, reformed Shared Ownership model, making buying a share of a home fairer and more transparent. This new model will be simpler to understand and better able shared owners to buy more of their property and eventually reach full ownership.

To deliver on the homes this country needs, the Government is committed to building at least a million more homes over this Parliament. In the coming months we will set out further steps to achieve this, including an ambitious Planning White Paper and funding for critical infrastructure.

The Planning White Paper will make the planning process clearer, more accessible and more certain for all users, including homeowners and small businesses. It will also address resourcing and performance in Planning Departments.

The new £10bn Single Housing Infrastructure fund will provide the roads, schools and GP surgeries needed to support new homes. Alongside First Homes, this will ensure local people truly benefit from house building in their area and build support for new developments

To help those who rent, the Government will build a rental system that is fit for the modern day – supporting landlords to provide high quality homes while protecting tenants. The Government’s Better Deal for Renters will fulfil our manifesto commitments to abolish ‘no fault’ evictions and to introduce lifetime deposits, alongside further reforms to strengthen the sector for years to come.

The Government is taking forward a comprehensive programme of reform to end unfair practices in the leasehold market. This includes working with the Law Commission to make buying a freehold or extending a lease easier, quicker and more cost effective – and to reinvigorate commonhold and Right to Manage.

The Government will ensure that if a new home can be sold as freehold, then it will be. We will get rid of unnecessary ground rents on new leases and give new rights to homeowners to challenge unfair charges. The Government will also close legal loopholes to prevent unfair evictions and make it faster and cheaper to sell a leasehold home.

For those in the social rented sector, we will bring forward a Social Housing White Paper which will set out further measures to empower tenants and support the continued supply of social homes. This will include measures to provide greater redress, better regulation and improve the quality of social housing.

This Government has committed to end rough sleeping by the end of this Parliament. The Government will continue to invest in key rough sleeping interventions, building on the progress that we made last year in reducing rough sleeping numbers. The Government will also continue to support those at risk of homelessness and rough sleeping through the continued enforcement of the Homelessness Reduction Act.

Building Safety Bill (pages 51 to 53):

New measures will be brought forward…to improve building safety.

An enhanced safety framework for high-rise residential buildings, taking forward the recommendations from Dame Judith Hackitt’s independent review of building safety, and in some areas going further by:

Providing clearer accountability and stronger duties for those responsible for the safety of high-rise buildings throughout the building’s design, construction and occupation, with clear competence requirements to maintain high standards.

Giving residents a stronger voice in the system, ensuring their concerns are never ignored and they fully understand how they can contribute to maintaining safety in their buildings.

Strengthening enforcement and sanctions to deter non-compliance with the new regime, hold the right people to account when mistakes are made and ensure they are not repeated.

Developing a new stronger and clearer framework to provide national oversight of construction products, to ensure all products meet high performance standards.

Developing a new system to oversee the whole built environment, with local enforcement agencies and national regulators working together to ensure that the safety of all buildings is improved.

We will also legislate to require that developers of new build homes must belong to a New Homes Ombudsman.

Fire Safety Bill (pages 54 to 55):

New measures will be brought forward…to improve building safety.”

Clarifying that the scope of the Fire Safety Order includes the external walls of the building, including cladding, and fire doors for domestic premises of multiple occupancy.

Strengthening the relevant enforcement powers to hold building owners and managers to account.

Providing a transitional period for building owners and managers (the “responsible person”) and Fire and Rescue Services to put in place the infrastructure for these changes.”

National Infrastructure Strategy (pages 90 to 91):

My government will prioritise investment in infrastructure…”

The National Infrastructure Strategy will be published alongside the first Budget, and will set out further details of the Government’s plan to invest £100 billion to transform the UK’s infrastructure.

The Strategy will set out the Government’s long-term ambitions across all areas of economic infrastructure including transport, local growth, decarbonisation, digital infrastructure, infrastructure finance and delivery.

The Strategy will have two key aims:

To unleash Britain’s potential by levelling up and connecting every part of the country. Prosperity will be shared across all of the UK, and long- standing economic challenges addressed, through responsible and prudent investment in the infrastructure.

To address the critical challenges posed by climate change and build on the UK’s world-leading commitment to achieve net zero emissions by 2050.

The Strategy will also provide the Government’s formal response to the National Infrastructure Commission’s 2018 National Infrastructure Assessment, which made a series of independent recommendations to government across all sectors of economic infrastructure (transport, energy, digital, waste, water and flood management).”

Rail reform and High Speed Rail 2 (West Midlands – Crewe) Bill (pages 101 to 103)

Last year the Government launched a ‘root and branch’ review of the railways led by Keith Williams. The Review is the first comprehensive assessment of the rail system in a generation and is tasked with making ambitious proposals to reform the rail industry.

The Review is focused on reforms that will put passengers at the heart of the railway, provide value for taxpayers and deliver economic, social and environmental benefits across Britain.

The Government will publish a White Paper informed by the recommendations next year. Among other things, this will end the complicated franchising model to create a simpler, more effective system.

The Government has also committed to a number of major investments in the railway, including:

o Midlands Rail Hub, to improve services around Birmingham and throughout the West and East Midlands;

o Northern Powerhouse Rail;

o Reopening a number of the lines and stations closed under the

Beeching cuts in the 1960s; and,

o Significant upgrades to urban commuter and regional services outside London.

Separate to the wider review of the railway system, the Government awaits the review, of the High Speed Two (HS2) network led by Doug Oakervee which is looking at whether and how to proceed with HS2, including the benefits and impacts; affordability and efficiency; deliverability; and scope and phasing, including its relationship with Northern Powerhouse Rail.

Without prejudice to the Oakervee Review’s findings and any Government decisions that follow, it is expected that the High Speed Rail (West Midlands – Crewe) Bill will be revived in this Parliament. The Bill was first introduced in Parliament in July 2017 and will enable Phase 2a of HS2. The Bill passed through the House of Commons and had completed Second Reading in the House of Lords before the dissolution of the previous Parliament. Following revival it would begin its next stages in the House of Lords.

English Devolution (pages 109 to 110):

My government…will give communities more control over how investment is spent so that they can decide what is best for them.”

We are committed to levelling up powers and investment in the regions across England and allowing each part of the country to decide its own destiny.

This means proposals to transform this country with better infrastructure, better education, and better technology.

We will publish a White Paper setting out our strategy to unleash the potential of our regions, which will include plans for spending and local growth funding.

It will provide further information on our plans for full devolution across England, levelling up powers between Mayoral Combined Authorities, increasing the number of mayors and doing more devolution deals.

These increased powers and funding will mean more local democratic responsibility and accountability.

We remain committed to the Northern Powerhouse, Midlands Engine, and Western Gateway strategies.

Business rates (page 111):

To support business, my government will…bring forward changes to business rates.

The Government is committed to conducting a fundamental review of business rates.

The Government recognises the role of business rates as a source of local authority income and will consider input from the sector as part of the review of business rates. Further details on the review will be announced.

We are committed to increasing the retail discount from one-third to 50 per cent, extending that discount to cinemas and music venues, extending the duration of the local newspapers discount, and introducing an additional discount for pubs.

We will also progress legislation to bring forward the next business rates revaluation by one year from 2022 to 2021 and move business rates revaluations from a five-yearly cycle to a three-yearly cycle. This will allow the Government to press ahead with delivering an important reform that has been strongly welcomed by business.

More frequent revaluations will ensure that business rates bills are more up- to-date reflecting properties’ current rental values. Moving to three-yearly revaluation will make the system more responsive to changing economic conditions.

Environment Bill (pages 112 to 114):

To protect and improve the environment for future generations, a bill will enshrine in law environmental principles and legally-binding targets, including for air quality. It will also ban the export of polluting plastic waste to countries outside the Organisation for Economic Co-operation and Development and establish a new, world-leading independent regulator in statute.

Establishing new long term domestic environmental governance based on: environmental principles; a comprehensive framework for legally-binding targets, a long term plan to deliver environmental improvements; and the new Office for Environmental Protection.

Improving air quality by setting an ambitious legally-binding target to reduce fine particulate matter (PM2.5), the most damaging pollutant to human health. The Bill also increases local powers to address sources of air pollution and brings forward powers for the Government to mandate recalls of vehicles when they do not meet legal emission standards.

Protecting nature by mandating ‘biodiversity net gain’ into the planning system, ensuring new houses aren’t built at the expense of nature and delivering thriving natural spaces for communities. We will improve protection for our natural habitats through Local Nature Recovery Strategies and give communities a greater say in the protection of local trees.

Preserving our resources by minimising waste, promoting resource efficiency and moving towards a circular economy. These measures include extended producer responsibility, a consistent approach to recycling, tackling waste crime, introducing deposit return schemes, and more effective litter enforcement. We will also ban the export of polluting plastic waste to non- OECD countries, consulting with industry, NGOs, and local councils on the date by which this should be achieved.

Introducing charges for specified single use plastic items. This will build on the success of the carrier bag charge and incentivise consumers to choose more sustainable alternatives.

Managing water sustainably through more effective legislation to secure long- term, resilient water and wastewater services. This will include powers to direct water companies to work together to meet current and future demand for water, making planning more robust, and ensuring we are better able to maintain water supplies.

Climate change (pages 115 to 118):

My government will continue to take steps to meet the world-leading target of net zero greenhouse gas emissions by 2050. It will continue to lead the way in tackling global climate change, hosting the COP26 Summit in 2020.”

We will build on our progress with an ambitious programme of policy and investment, with our first Budget prioritising the environment. This will help deliver the green infrastructure needed to improve lives and achieve Net Zero, including by investing in carbon capture, offshore wind, nuclear energy, and electric vehicle infrastructure so that individuals are always within 30 miles of a chargepoint. We will make sure we help lower energy bills investing in the energy efficiency of homes, schools and hospitals. And away from home, we will use our £1 billion Ayrton Fund to develop affordable clean energy for developing countries.

The government will continue to use our position as a global leader in this area by hosting the UN Climate Change Summit in Glasgow in 2020 (COP26). We will ask our partners to match the UK’s ambition.

With a focus on nature based solutions at our upcoming COP summit, at home we will be substantially increasing our tree-planting commitment and creating a £640 million new Nature for Climate fund.

Our natural environment is one of our greatest assets, and can play a crucial role in the fight against climate change. This government will:

introduce a landmark Environment Bill – the first one in twenty years – that will create an ambitious environmental governance framework for post Brexit, as well as banning the export of plastic waste to non-OECD countries;

establish a new £500 million Blue Planet Fund to help protect our oceans from plastic pollution, warming sea temperatures and overfishing;

lead diplomatic efforts to protect 30 per cent of the world’s oceans by 2030; and,

in our trade negotiations, never compromise on our high environmental protection

We will also ensure that we are protecting our citizens by investing £4 billion in flood defences and lowering energy bills by investing £9.2 billion in the energy efficiency of homes, schools and hospitals.

We will increase our ambition on offshore wind to 40GW by 2030, and enable new floating turbines.

We will support decarbonisation of industry and power by investing £800 million to build the first fully deployed carbon capture storage cluster by the mid-2020s; and £500 million to help energy-intensive industries move to low-carbon techniques.

Constitution and democracy (pages 126 to 127):

A Constitution, Democracy and Rights Commission will be established. Work will be taken forward to repeal the Fixed-term Parliaments Act.”

Setting up a Constitution, Democracy & Rights Commission that will:

Examine the broader aspects of the constitution in depth and develop proposals to restore trust in our institutions and in how our democracy operates. Careful consideration is needed on the composition and focus of the Commission. Further announcements shall be made in due course.

It’s a blue, blue, blue, blue Christmas.

The usual askew perspectives and commentary will continue here in 2020.

Simon Ricketts, 21 December 2019

Personal views, et cetera

Planning, Brexit

In all the Brexit noise, like me you may have missed that a draft Bill of Parliament is shortly to be published by DEFRA that will have direct relevance for English planners and planning lawyers.

The European Union (Withdrawal) Act 2018 was enacted on 26 June 2018. As a result of amendments to the Bill introduced in the House of Lords and substantially accepted when the Bill returned to the Commons, section 16 of the Act seeks to secure that “environmental principles” are maintained once we leave the EU and we no longer have the monitoring and enforcement functions currently being carried out by the European Commission and European Court of Justice. It provides as follows:

Maintenance of environmental principles etc.

(1) The Secretary of State must, within the period of six months beginning with the day on which this Act is passed, publish a draft Bill consisting of—

(a)  a set of environmental principles,

(b)  a duty on the Secretary of State to publish a statement of policy in relation to the application and interpretation of those principles in connection with the making and development of policies by Ministers of the Crown,

(c)  a duty which ensures that Ministers of the Crown must have regard, in circumstances provided for by or under the Bill, to the statement mentioned in paragraph (b),

(d)  provisions for the establishment of a public authority with functions for taking, in circumstances provided for by or under the Bill, proportionate enforcement action (including legal proceedings if necessary) where the authority considers that a Minister of the Crown is not complying with environmental law (as it is defined in the Bill), and

(e)  such other provisions as the Secretary of State considers appropriate

(2) The set of environmental principles mentioned in subsection (1)(a) must (however worded) consist of—

(a)  the precautionary principle so far as relating to the environment,

(b)  the principle of preventative action to avert environmental damage,

(c)  the principle that environmental damage should as a priority be rectified at source,

(d)  the polluter pays principle,

(e)  the principle of sustainable development,

(f)  the principle that environmental protection requirements must be integrated into the definition and implementation of policies and activities,

(g)  public access to environmental information,

(h)  public participation in environmental decision-making, and

(i)  access to justice in relation to environmental matters.”

This was not a big concession for the Government to make. In January 2017 the Commons Environmental Audit Committee recommended that the Government introduce an Environmental Protection Act to ensure that environmental enforcement and governance mechanisms were not lost after leaving the European Union.

The Government committed to consulting “early in 2018” on “establishing a new, world-leading, independent, statutory body to give the environment a voice, championing and upholding environmental standards as we leave the European Union” in DEFRA’s 25 Year Environment Plan (11 January 2018)

In England DEFRA on 10 May 2018 started a consultation process, Environmental Principles and Governance after EU Exit, which closed on 2 August 2018. The consultation paper indicates that the proposed Environmental Principles and Governance Bill will be published in draft in “Autumn 2018“, although as a result of section 16 the absolute statutory deadline for publication of the draft is 26 December.

The Environmental Principles and Governance Bill will need to provide for:

⁃ the formulation of a set of environmental principles to be adhered to; and

⁃ the establishment of an independent body to enforce environmental law.

The DEFRA consultation paper does not go into much detail. It sets out the following basic position:

Where environmental principles are contained in specific pieces of EU legislation, these will be maintained as part of our domestic legal framework through the retention of EU law under the EU (Withdrawal) Bill. Any question as to the interpretation of retained EU law will be determined by UK courts in accordance with relevant pre-exit CJEU case law and general principles, subject to the other exceptions and restrictions within the Bill. For example, CJEU case law on chemicals, waste and habitats includes judgments on the application of the precautionary principle to those areas. This will therefore be preserved by the Bill.” (paragraph 26)

The consultation paper invites views from consultees as to whether the environmental principles (without giving any detail as to what these principles will look like) should be articulated in the Bill itself or should be left to be addressed in a subsequent statutory policy statement.

The list of environmental principles in section 16 (2) is plainly potentially relevant to every aspect of the planning system, but we need to see the detail!

The consultation paper proposes the following in relation to the proposed independent body:

Objectives for the establishment of the body are that it should:

⁃ Act as a strong, objective, impartial and well-evidenced voice for environmental protection and enhancement.

⁃ Be independent of government and capable of holding it to account.

⁃ Be established on a durable, statutory basis.

⁃ Have a clear remit, avoiding overlap with other bodies.

⁃ Have the powers, functions and resources required to deliver that remit.

⁃ Operate in a clear, proportionate and transparent way in the public interest, recognising that it is necessary to balance environmental protection against other priorities. ”

There is a specific section in the consultation paper in relation to the potential relevance of the body to the operation of the planning system:

Interaction with the planning system

133. Planning aims to ensure that the right development happens in the right place at the right time, benefiting communities and the economy. It plays a critical role in identifying what development is needed and where, what areas need to be protected or enhanced and in assessing whether proposed development is suitable.

134. The new body’s functions in relation to environmental aspects of the planning framework would need to work alongside, while ensuring clear boundaries between, the established systems in place for scrutiny of and appeal against planning decisions and development plans. The intention would be that individual decisions made under relevant planning legislation would continue to be handled under the existing processes.

135. As with other areas of environmental law, we need to consider how the body would interact with the existing planning system in relation to environmental laws that apply to planning activities, notably those concerning implementation of habitats regulations assessments, environmental impact assessments and strategic environmental assessments. This should not be a case-by-case review of decisions regarding development plans and proposals, which would be duplicative and would amount to another tier in the planning process. The body would have no role in individual planning policy decisions. The focus of the new body would therefore be on ensuring the correct application of relevant environmental law within the planning system.

136. In relation to wider planning policy, the body could have two roles. Firstly, it could be a key consultee, when certain planning policy is being considered, for example when the National Planning Policy Framework is updated. Furthermore, if the body has a wider policy role, it could provide advice on the implementation of the environmental aspects of existing planning policy and suggest future potential changes. The government would not be bound to agree to such suggestions, but should consider them alongside wider policy aims

All sorts of questions of course arise from these proposals:

– how detailed will the environmental principles be? Will the principles contain targets in the manner of DEFRA’s 25 Year Environment Plan (11 January 2018) or will they be a generic summary of the principles currently underlying EU environmental legislation along the lines of, for instance article 191 of the Treaty of the Functioning of the European Union (and if so how useful will they be?).

⁃ to the extent that the principles, such as the “principle of sustainable development” overlap with existing guidance, for instance within the NPPF, will the principles (having a statutory basis) be relevant to decision making in relation to applications and appeals and to plan making? How can we avoid unanticipated effects in that regard? Even if the intention is to retain the status quo, at least for the time being, how easy will that be?

⁃ will Parliament kick the can down the road by relegating the principles to a statutory policy statement, for how long will this be, what will be the consultation process, what voting process will be required within Parliament and what will be the mechanism for making subsequent amendments?

⁃ Surely it is for the courts to ensure “the correct application of relevant environmental law within the planning system“? Non-legally binding views from this new authority on the way in which the law is to be interpreted, beyond views already formally expressed by ministers or government bodies such as the Environment Agency, Natural England or Historic England, may just add confusion.

⁃ how can a body be created which does not overlap with existing bodies such as the Environment Agency, has a “baked in” constitutional status and which is not susceptible to lobbying and repeated judicial reviews?

⁃ whilst the proposed body is not intended to be embroiled in individual planning decisions, what safeguards will there be as to its potential influence on planning outcomes in other ways, for instance through expressing views on types of development?

⁃ to what extent will there be coordination and consistency as between England and the devolved nations?

⁃ depending on the nature of any Brexit transitional arrangements, what about the interregnum between the cessation of the European Commission and European Court of Justice’s jurisdiction and the establishment of new regimes within England, Wales, Scotland and Northern Ireland? 26 December 2018 is only the deadline for the draft Bill. How long before the Bill itself is introduced, enacted and brought into force, with this new body up and running? If we have a “deal” and a transition period, time will be tight but there may not be a gap. If there is “no deal”, there will be a period before the promised structure is in place, indeed there will be no environmental principles in place, nor an independent body to ensure compliance.

The Commons Environmental Audit Committee has been conducting the Environmental Governance Consultation Paper Inquiry seeking answers to a number of questions along these lines. Michael Gove gave evidence to the inquiry on 11 July 2018. The session is pretty unedifying with much attempted point scoring but there are some interesting exchanges.

For example, the Committee chair asked how the policy statement for the principles will be developed and scrutinised:

Michael Gove: I think that it would be developed within the Government, like any other policy statement. An analogy has been drawn—no analogy is perfect—with the National Planning Policy Framework. I would propose or suggest that the Government draw up their policy statement. Obviously it would be up to any Government Minister as to how they would set about gathering evidence, consulting, and making clear what the means might be for shaping that policy statement. Then I hope that it would be presented to the House of Commons and then debated and voted on in the House of Commons.

Chair: That is where the row is going to happen again, is it not? Across Government the rows will come back in from Treasury, from DCLG, and from Transport about how this is not going to be accepted by Ministers. Then you are going to have all the green groups and the NGOs rightly asking for much higher standards. What is the process of engaging with the public? You are saying there is a legal policy process in the Government. How long will the public have to look at this statement?

Michael Gove: That is a very fair point. One of the things is we want to have it debated and voted on in Parliament, to take the concerns you have. Were there to be a future Government Minister in another Government Department that wanted in some way to include in the policy statement things that you or I might think were not necessarily a good idea for the better protection of our environment, were that hypothetical future Minister to prevail in the shaping of the policy statement in a way that you or I might not altogether approve of, when it came to the House of Commons I think it would be the case that the NGOs that you mention and members of the public or you or I might say, “Hmm” and would seek therefore to say, “I am sorry, as you bring this forward, I do not think you will necessarily get a majority in the House of Commons for this provision, because it will be seen as weakening protection. Therefore, we in the House of Commons will not stand for it”.

In the same way as the House of Commons and the House of Lords together amended the EU (Withdrawal) Bill in a particular way, so I could see a situation in the future where the prospect of defeat in the House of Commons for a particular proposition might lead the Government to then amend their policy statement so that the hypothetical Minister in a future case who might have wanted to weaken protections would find that his or her ambitions were thwarted by the democratic majority in the House.”

The Committee had originally hoped to conclude the inquiry by DEFRA’s consultation deadline of 2 August but we still await its report. I hope that its conclusions will be able to be taken into account by DEFRA before it proceeds to publish its draft Bill, although I suspect we have a long way to go before an actual set of principles starts to emerge, alongside a clearer idea as to the nature of the authority that is to hold the ring on all of this.

In the meantime of course, existing legislation will need to be scrubbed free, via statutory instruments, of any references to EU law, to be replaced by references to the relevant EU legislation frozen at time of exit or relevant domestic legislation, but that will not be where the substantive effects are likely to be felt. Instead, watch out for the draft Bill and surrounding announcements and let’s be alert for any unintended implications for our town and country planning system.

Simon Ricketts, 18 September 2018

Personal views, et cetera

Everyone Knows This Is Nowhere: Devolution

The prospect of devolution can perhaps cause people to get too excited (Brexit; Catalonia) or perhaps not excited enough (the last Labour Government’s experiment with regional assemblies; the current roll-out of combined authorities). Predictably, this blog post focuses on the latter category. 
First of all, in order to understand planning in Great Britain you need to understand its post-devolution administrative structure, following the enormous changes of the last 20 years. 
It is now 20 years since referendums in Scotland and Wales led to the creation of the Scottish Parliament and National Assembly for Wales, with the Good Friday Agreement and Northern Ireland Act 1998 following a year later, leading to the creation of the Northern Ireland Assembly. 
Slowly but surely, four different planning systems have developed, summarised in a January 2016 House of Commons library briefing paper, Comparison of the planning systems in the four UK countries.
In relation to English devolution issues, perhaps dull is good, with arguments often focusing on worthy but dull questions of efficiency of administration and decision making, and the unlocking of funding streams. 

Directly elected regional administration of London was reintroduced in 2000 following a referendum in May 1998, in which there was a 72% majority vote (out of a 34% turnout) for the establishment of the Greater London Authority, to be led by an elected Mayor. Despite the low turnout, the size of the “yes” vote did seem to recognise the need for a unified voice for London that had been missing since the abolition of the Greater London Council in 1986. 
The Labour Government of the time attempted to use elements of the London model to introduce directly-elected regional assemblies across England. However, it became plain that there simply was not the public appetite. Voters rejected the proposal for a regional assembly for the North East 77.9% to 22.1%, on a turnout of 48% in November 2004 and other proposed referendums for the North West and for Yorkshire and the Humber were then dropped. Whilst there is still some nostalgic harking back to the regional planning of the time, the ridiculously complicated structure in the Planning and Compulsory Purchase Act 2004 took the form of regional spatial strategies, prepared by ‘regional planning bodies’, comprising regional assemblies of co-opted local authority members. The process was closely overseen by central Government and indeed each final regional spatial strategy was published by the Government. So, hardly devolution – and with regional boundaries that often had no historic or emotional basis – although a potentially helpful administrative structure for coordinating local authorities and determining local authority housing targets.
Regional spatial strategies, along with all mentions of the “r” word including the regional planning boards, regional assemblies and regional development agencies (save for the London Development Agency, which survived a little longer) were swept away following the coalition Government coming into power in 2010. The new mantra of localism dictated the removal of top-down targets in favour of the bottom-up idea that it would be more effective for local authorities to determine how to meet their and their neighbours’ housing needs via the Localism Act 2011’s “duty to cooperate”, a Cheshire cat’s smile if ever one there was. Coordinated investment into the regions, including application of EU structural funds, became more difficult following the abolition of the regional development agencies, a vacuum only partly filled by LEPs (voluntary local economic partnerships between local politicians and business people). 
But local politicians (the public? I’m not so sure) continued to press for greater devolution of powers to the regions, particularly against the background of the greater autonomy given to Scotland in particular in the run-up to the 2014 Scottish independence referendum (where there was a 55% vote against independence on an 85% turnout – that was clearly a vote that clearly did matter to its electorate). The Government embarked on negotiating a series of ‘devolution deals’ with groups of local authorities. The first deal, to create the Greater Manchester Combined Authority, was announced in November 2014. 
The Cities and Local Government Devolution Act 2016 was, as set out its explanatory notes, “intended to support delivery of the Government’s [2015] manifesto commitment to “devolve powers and budgets to boost local growth in England”, in particular to “devolve far-reaching powers over economic development, transport and social care to large cities which choose to have elected mayors” and “legislate to deliver the historic deal for Greater Manchester”. The Act takes forward a number of reforms which are intended to allow for the implementation of devolution agreements with combined authority areas and with other areas. It is enabling legislation which provides a legislative framework which can be applied flexibly to different areas by secondary legislation.” 

The devolution deals to date are listed on the Local Government Association’s website. The powers agreed to be devolved have been different in each case. The position is well summarised in a House of Commons library briefing paper, Devolution to local government in England (23 November 2016):


It will be seen that some deals include the power to create a spatial plan for the area, and/or the power to establish Mayoral Development Corporations. Some deals will also permit the combined authority to use compulsory purchase orders, with the consent of the local authority in which the land or property is located.

I looked specifically at the West Midlands Combined Authority in my blog post Devo West Mids (24 October 2016). 
So far we have had mayoral elections for six combined authorities, which all took place in May 2017. Turnouts were all very low indeed:

Whilst regional devolution may not capture the attention of voters (in fact I’m sure it is utterly confusing to most), undoubtedly it presently brings the promise of significant funding streams from Government. Professor Janice Morphet has also pointed in her 2016 book Infrastructure Delivery Planning to the work of economist Paul Krugman in showing the growth in national GDP that can result from investment decisions being made at a sub-national level. More practically, big personalities are important. That has been the experience in London – and Greater Manchester and the West Midlands both now have strong Mayors, in the shape of Andy Burnham and Andy Street respectively, who will undoubtedly drive those great city regions in an equivalent way. 

A further election, in the Sheffield City Region, is due to be held in May 2018. Why the delay in Sheffield? The city region, which will control additional spending of £30m a year over the next 30 years, was originally going to include Chesterfield and Bassetlaw (which authorities would thereby be able to participate in the significant government funding available). However, Derbyshire County Council (which would automatically thereby be drawn into the arrangement and which opposed “powers for key services in the town being handed to a Sheffield City Region Mayor”) successfully judicially reviewed the process, alleging consultation flaws in R (Derbyshire County Council) v Barnsley, Doncaster, Rotherham and Sheffield Combined Authority, Secretary of State and Chesterfield Borough Council (Ouseley J, 21 December 2016). Chesterfield is in the county of Derbyshire and Bassetlaw is in the county of Nottinghamshire. Ouseley J accepted that the views of the public should have been, but were not, specifically sought as to whether Chesterfield Borough Council should be a part of the combined authority. The case led first to the Sheffield City Region mayoral election being delayed by a year and then to Chesterfield and Bassetlaw withdrawing their applications for full membership (in the case of Chesterfield after Derbyshire had resolved in June 2017 to carry out a full referendum of all Chesterfield residents). 
The momentum generally appears to have paused. Section 1 of the Cities and Local Government Devolution Act 2016 places a duty on the Secretary of State to provide annual reports to Parliament setting out progress on devolution across England as soon as practicable after 31 March each year. The Local Government Association is concerned that this year’s report has not yet been published.   
We are at an interesting point. 

First, am I being too downbeat about the benefits of further devolution? I see that Lord Heseltine and Ben Rogers are speaking on Giving Power to the People: The Future of Devolution at the Future City Festival on 19 October 2017. Is there currently the political, or public, will?
Secondly, what now for London? In my view, the devolution of power to London (including reducing to an extent the powers of individual boroughs) has been a success. The moves towards greater powers for the Mayor of London have continued, which is welcome, but should there be more? Ben Rogers wrote an interesting FT piece Would more independence for London benefit the nation? on 3 October 2017.

Thirdly, and most importantly, what changes will Brexit bring? For a start we will see an end to EU structural funding, much of which was to be passed to local areas, although the Government has guaranteed any spending of these funds that is agreed before the UK leaves the EU. But more fundamentally, as again Professor Janice Morphet has pointed out, in her 2017 paper (not yet published) to the Oxford Joint Planning Law Conference we risk losing part of the drive towards devolution that arises from the EU’s principles of subsidiarity and fairness, which translate into for instance the application of structural funds and the development of the Trans European Networks which have been an impetus for transport infrastructure investment. 
Ultimately, might it be the case that some devolution is ruled by the heart and some by the head? English devolution may be in the latter category, described indeed this week in EG this week by Jackie Sadek as a “fragile flower”. Let’s hope it’s not trampled upon by politicians with only a March 2019 deadline in mind. 
Simon Ricketts, 6.10.17
Personal views, et cetera

Nightmare On Marsham Street: What Now?

So much for fixing the broken housing market. Those poor DCLG civil servants. Here we are again in wholly uncertain territory – anathema to planning, anathema to business. In the aftermath of the Brexit vote I wrote a blog post on how we can possibly give any useful advice in these sorts of situations, How To Predict; How To Advise.
This blog post simply sets out various questions, to which I do not know the answer. 
First, how long will May stay as PM? Will we see a Conservative leadership challenge, will we have an early election (again)?
Secondly, will May lead a minority government, dependent vote by vote, issue by issue on the DUP and/or common positions with other parties, or will this be a true coalition government with a formal coalition agreement? In either case, what terms will the DUP extract? This will certainly be an early test for the PM of her negotiating skills, ahead of the start of Brexit talks that start on 19 June (the same day as the Queen’s Speech – the future comes at you fast doesn’t it…) and indeed ahead of the resumption of Parliament on 13 June. Will she be able to bring her own party to the table with the DUP given the DUP’s stance on LGBT, abortion and climate change (on the last of which, see this 9 June 2017 Greenpeace summary)? Will an alliance with the DUP be consistent with the Northern Ireland power-sharing arrangements within the Good Friday Agreement? Are they a competent partner, given for instance the “cash for ash” debacle that has cost all of us dear (see i-news 17 May 2017 )?
Thirdly, specifically in relation to planning matters in England, does a minority government matter, given a Conservative majority within England itself? After all, when it comes to planning and other devolved matters, the EVEL (English Votes For English Laws) amendments made in 2015 to Parliamentary standing orders come into play. As with matters of Northern Irish politics, the detailed operation of EVEL is far from my special subject, but basically if provision in legislative business is certified by the Speaker as only affecting England, or England and Wales, and within devolved legislative competence, only the members of Parliament within the relevant administrations have a vote. This is all explained in more detail in a House of Commons Library research paper  (2 December 2015). In fact the Housing and Planning Bill was the first to have its provisions certified, on 28 October 2015, under the new standing orders. Short of legislation, many other planning functions of the Secretary of State can of course be conducted without the need for a vote in Parliament, although necessarily only by proceeding with extreme caution given the political vulnerability. Two other thoughts on this issue: (1) the standing orders can be changed by a simple majority – a minority government will be vulnerable to that, so for how long will EVEL survive? and (2) EVEL of course means that DUP votes count for nothing in relation to English and Welsh devolved matters.  
Fourthly, who will the ministerial team be? Former housing and planning minister Gavin Barwell of course lost his seat and it will be tough to replace him with someone with an equivalent grasp of the detail (although it does seem like yesterday that I wrote my 17 July 2016 blog post when his appointment was first announced). Whilst Secretary of State Sajid Javid retained his seat, he has long been rumoured as out of favour with the PM (eg Conservative Home piece  8 February 2017) but, with the new mantra of ‘stability’, will he stay in position?
Fifthly, what of the current policy agenda, with so many pieces of unfinished business? I set out where things were left in my 21.4.17 blog post, Parliament, Purdah, Planning. Is it realistic to expect a new incumbent to make quick progress, simply accepting the previous agenda and direction? Surely not. Save for the most technical, least politically sensitive matters, a delay surely is to be expected. Whether that matters in most areas is another question – on the one hand we have all been using that ‘stability’ mantra for a long time but on the other hand, if the repeated Conservative manifesto commitment on housing numbers is to be achieved, we can’t carry on as we are. As Einstein may or may not have said, doing the same thing over and over again and expecting different results = insanity. 
Sixthly, is there the political capacity at the moment for more far-reaching reforms? Surely, faced the unique challenge of the Article 50 negotiations (with their fixed March 2019 deadline) and a precarious hold on power, the prospects of radical thinking in any other area, including planning and infrastructure, have significantly receded. In practice, how much time will the cabinet have for CIL reform let alone more radical land value capture/compulsory purchase compensation law changes; or for HS2 phase 2, let alone Crossail 2?
Nightmarish? Possibly. Fascinating? Absolutely!!
Simon Ricketts 10.6.17
Personal views, et cetera

Devo West Mids

Connecting the dots as to the Government’s policy announcements is never easy for all of us on the outside, trying to work out what they may turn out to mean in practice. 
An evidence session today with the West Midlands Land Commission was a good excuse for me to get to grips, belatedly, with what changes devolution may bring to planning and compulsory purchase in the West Midlands. 


Background

The West Midlands Combined Authority  was formally established on 16 June 2016 by virtue of the West Midlands Combined Authority Order 2016 . It comprises 17 local authorities and three LEPs and follows a devolution agreement dated 17 November 2015  .

The WMCA is to be chaired by a directly elected Mayor. The election is due to take place on 4 May 2017. Andy Street is to step down from his job as John Lewis chief executive to stand, as the Conservative candidate. Sion Simon is the Labour candidate. 
The devolution agreement includes the following statements in relation to planning:
“Planning powers will be conferred on the Mayor, to drive housing delivery and improvements in housing stock, and give the same competencies as the HCA.

“The Combined Authority and its constituent authorities will support an ambitious target for the increase in new homes, and will report annually on progress against this target. To ensure delivery of this commitment, the Shadow Board of the Combined Authority and the government agree that: 


    * Existing Local Authority functions, which include compulsory purchase powers, will be conferred concurrently on the Combined Authority to be exercised by the Mayor. These powers, which provide the same competencies as the Home and Community Agency, will enable the Combined Authority to deliver its housing and economic growth strategies. The government will bring forward further proposals for consultation in the New Year and will, as part of that consultation, discuss how they can be applied to support housing, regeneration and growth. 


    * The Homes and Communities Agency and the Combined Authority will work together to develop a joint approach to strategic plans for housing and growth proposals for the area. 


    * The government will work with the Combined Authority to support the West Midlands Land Commission. The West Midlands Land Commission will ensure there is a sufficient, balanced supply of readily available sites for commercial and residential development to meet the demands of a growing West Midlands economy. It will create a comprehensive database of available public and private sector land, identify barriers to its disposal/development, and develop solutions to address those barriers to help the West Midlands meet its goal to deliver a significant number of additional new homes over the next 10 years, and to unlock more land for employment use. The Combined Authority will also be able to use their proposed Land Remediation Fund to support bringing brownfield sites back into use for employment and housing provision”. 

WMCA’s ambitious objectives are set out in its Strategic Economic Plan  and include a “higher level of housebuilding than is currently provided for in development plans”. 
A Scheme for the Mayoral West Midlands Combined Authority was published on 4 July 2016 for a consultation period which closed on 21 August 2016. It seeks equivalent powers to establish mayoral development corporations, with the agreement of the relevant LPAs, as the London Mayor currently has. It also seeks, for its area, the same planning and compulsory purchase powers as the Homes and Communities Agency. 
The West Midlands Land Commission has also been set up, with terms of reference  to consider “what measures could be initiated and undertaken to ensure an improved supply of developable land from both a strategic and regional perspective”. 
WMCA has begun to work on specific strategic sites. It published on 19 October 2016 its Greater Ickneild and Smethwick housing growth prospectus. An application for housing zone status is to be made. (Although – is it just me? – the Government’s housing zones announcement 5 January 2016  is very vague as to the implications of HZ status other than the potential for an element of Government funding). 
Implications
What sort of planning powers WMCA will have to encourage, cajole and coordinate the work of its member authorities? Increased housing numbers will not come without real interventions and a new approach by all involved – in which I very much include the Government. After all:
– the Birmingham City Plan is still on hold following the previous Secretary of State’s 26 May 2016 holding direction as a result of concerns expressed by Sutton Coldfield MP Andrew Mitchell as to the proposed release from the green belt of land for the development of 6,000 homes

– we are still waiting for numerous measures to be fleshed out pursuant to the Housing and Planning Act 2016, including permission in principle and also the enticing mystery that is the concept in section 154 of “planning freedoms schemes”

– there is still no sign of the amended NPPF with its stronger policy support for development on brownfield sites. 

Will the WMCA be given CPO powers equivalent to the very wide powers that the HCA has by virtue of section 9 of the Housing and Regeneration Act 2008, or will it at least have a working arrangement with the HCA whereby the HCA will use its powers at the authority’s request? The section 9 power is much wider than LPAs’ normal “planning purposes” CPO power in section 226 of the Town and Country Planning Act 1990 as it can be used to achieve the HCA’s broader objectives as set out in section 2 of the 2008 Act:
“(a) to improve the supply and quality of housing in England, 

(b) to secure the regeneration or development of land or infrastructure in England, 


(c)  to support in other ways the creation, regeneration or development of communities in England or their continued well-being, and 


(d)  to contribute to the achievement of sustainable development and good design in England”

The use, or threat of use, of section 9 as against suitable sites which are not brought forward for development by their owners, might well be effective – particularly when taken with acquiring authorities’ possibly improved position against owners’ “no scheme world” compensation arguments by virtue of clause 22 of the Neighbourhood Planning Bill. 
Interesting also to see the London-style “Mayoral development corporations” proposal in the July Scheme document. But what about possibly developing other London-style structures, including the referral to and potential call-in by the Mayor of applications for strategic schemes?
So many unfinished legislative changes and policy announcements. As E. M. Forster (who died in Coventry – sole tenuous thematic link to blog) might have said: 
only connect
Simon Ricketts 24.10.16
Personal views, et cetera