Have We Got Planning Newts For You: Back To Brexit

Whether dog whistle politics, a dead cat strategy or a jibe at the triturus cristatus, the prime minister’s reference to “newt-counting delays” in his 30 June 2020 speech was no accident:

“Why are we so slow at building homes by comparison with other European countries?

In 2018 we built 2.25 homes per 1000 people

Germany managed 3.6, the Netherlands 3.8, France 6.8

I tell you why – because time is money, and the newt-counting delays in our system are a massive drag on the productivity and the prosperity of this country

and so we will build better and build greener but we will also build faster

and that is why the Chancellor and I have set up Project Speed to scythe through red tape and get things done”

As a literal statement, it is nonsense to blame the operation of the protected species regime in relation to great crested newts for the failure of successive governments to ensure that enough new homes are built in this country. Licensing has in any event already been overhauled – see Innovative Scheme to conserve newts and promote sustainable development is rolled out across England (Natural England, 25 February 2020). See also this BBC piece, Boris Johnson’s newt-counting claim questioned (Roger Harrabin, 3 July 2020).

The underlying messaging that was intended by the statement is of course clear: that there are environmental rules, “red tape”, previously foisted on us by Brussels, unnecessary, holding back development.

To continue with the animal references, this is a topical canard. I had in any event intended this week to sidestep the recent announcements about radical planning reform and go back to the possibly related question as to what is actually likely to happen from 1 January 2021 following the end of the Brexit transition period. My Town colleague Ricky Gama and I gave an online talk on this issue last week as part of the Henry Stewart Conferences course The Planning System. We need to focus again on all this, now that we are less than six months away from….what?

The EU (Withdrawal) Act received Royal Assent on 23 January 2020, amending in various respects the EU (Withdrawal) Act 2018 and giving Parliamentary approval for the withdrawal agreement between the UK and EU that was then completed on 1 February 2020. We left the EU on 31 March 2020 in the sense of no longer being part of its structures, including the European Parliament or European Commission. But we remain subject to EU law until 31 December 2020.

Until 31 December 2020, decisions of the UK government and UK public bodies can still be the subject of complaints to the European Commission and rulings by the European Court of Justice, and we are bound by changes in law and by any rulings of the ECJ by that date.

On 31 December 2020, EU law becomes “retained EU law” and existing rulings of European Court of Justice have binding effect.

However (not to scare the horses but…), from that date Parliament may review, amend or repeal all EU-derived domestic legislation without restriction. The Government can provide regulations as to how the UK courts should interpret retained EU law. The Supreme Court is not bound by any retained EU case law. Ministers can by regulations provide for any other relevant court or tribunal not to be bound (first consulting with the president of the Supreme Court president and other specified senior members of the judiciary). Indeed, the Government is already consulting as to how it might give freedom to lower courts to do this: it is no longer a hypothetical possibility – see Government consultation on lower courts departing from retained EU law (Philip Moser QC, 2 July 2020).

Of course we will go into 2021 with EU environmental law fully domesticated into our own systems. As far as planning law is concerned, the EIA, SEA, protected habitats and species regimes will remain, as already set out in our domestic legislation. But then what?

This Government has given no assurances.

There was previously a requirement in section 16 of the 2018 Act that the Government would maintain environmental principles and take steps to establish overseeing body, by publishing a draft Bill in relation to those matters by the end of 2018

Section 16 set out the relevant environmental principles ie

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.

A draft Bill was published by that deadline and its provisions, with some amendments (including a reduced version of that list), are now within the current Environment Bill.

The reduced list of environmental principles (in clause 16(5) of the Bill) is now as follows:

“(a) the principle that environmental protection should be integrated into the making of policies,

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

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

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

(e) the polluter pays principle.”

It no longer includes the principle of “sustainable development” or the last three principles set out in the 2018 Act, which derive from the Aarhus Convention rather than directly from EU law.

Progress on the Bill has been delayed until September 2020 due to Covid-19 (whilst the Government has not chosen, by the 30 June 2020 deadline in the withdrawal agreement, to agree an extension to the 31 December date, which would of course have been possible on exactly the same basis). But in any event Royal Assent would only be the start of a long process of arriving at policy statements so as to deliver on those principles and have up and running a functional Office for Environmental Protection (recruitment for roles within the proposed OEP has not yet commenced).

So any “radical” reform of the planning system is likely to slip in ahead of oversight, in any meaningful way, by this new body or application of the principles that were intended at the time of the 2018 Act to plug the gap post Brexit.

In fact, it’s worse than that. Section 16 of the 2018 Act was repealed by the 2020 Act. There is no longer any duty upon the Government to adopt any particular environmental principles or to establish any independent overseeing body. If the Environment Bill is withdrawn, kicked into the long grass or, by way of amendment, stripped of meaning, there’s nothing to be done, the horse has bolted.

The December 2019 Queen’s Speech said this:

“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.”

By way of political commitment, that’s all there currently is. (NB I think we need to give that “world-leading” epithet a rest – I am trying to think of a recent example where we wouldn’t have been content to swap “world-leading” or “world beating” for, say, “functioning”?).

So from 1 January 2021, what changes might we see to EU-derived environmental law?

It’s pure guess-work, because the Government will not presently be drawn on that subject (which makes the “newt” reference so triggering).

But do you think it was an accident that the last essay in the Policy Exchange publication Planning Anew, just before the tail-wagging endorsement at the end by the Secretary of State, was an essay entitled Environmental Impact Assessment fit for the 21st Century by a William Nicolle and Benedict McAleenan? A flavour:

“To make them fit for the 21st Century, EIAs should focus only on the environmental impacts of development, like natural ecosystems, biodiversity, water, and other components of natural capital. Greater weighting and priority could be given to the most pressing environmental impacts of today, such as biodiversity, given recent evidence of the scale of international and national wildlife decline.

There are several, more subjective facets of EIAs that need to be stripped out, as they dilute this focus and prioritisation of environmental impacts. Landscape aesthetics, for example, should not be included in EIAs, as they are not environmental impacts per se. Policy Exchange has led calls for beauty to be a central factor in the planning system. We applaud this, and have argued for the natural landscape to be the inspiration for architecture, but the EIA should be concerned with what the environmentalist Mark Cocker calls the “more than human”.”

Who are the authors? William Nicolle apparently joined Policy Exchange in 2019, having been a graduate analyst at a utility. Benedict McAleenan is managing partner at “political risk and reputation” firm Helmsley Partners.

The prime minister’s 30 June 2020 “Build, Build, Build” press statement promised a “planning Policy Paper in July setting out our plan for comprehensive reform of England’s seven-decade old planning system, to introduce a new approach that works better for our modern economy and society.”

If changes are proposed to EU-derived environmental laws, please can that be made absolutely clear so that we can have an informed debate. Change and improvement is possible but only where led by the science, not by the think tanks.

After all, any move towards a more zoning-based approach, where the development consenting process is simplified by setting detailed parameters at a plan-making or rule-setting level, will face complications due to the need for strategic environment assessment of any plan or programme required by legislative, regulatory or administrative provisions that sets the framework for subsequent development consents and which is likely to have significant environmental effects – assessment which has become highly prescriptive, particularly in terms of the need to consider, in detail, reasonable alternatives to the selected policy option. Projects which are likely to give rise to significant effects on the environment require environmental impact assessment. It must be shown that plans or projects will not adversely affect defined species of animals or the integrity of defined habitats – with rigorous processes and criteria. Politicians will be bumping up against EU-derived environmental law, and those environmental principles (not yet finalised), at every turn.

Of course, the Government would not have a completely free hand in changing or removing these processes. We are subject to wider international duties, under, for instance the European Convention on Human Rights, the Aarhus Convention, the Paris Agreement (climate), the Espoo Convention (environmental assessment) and the Ramsar Convention (habitats). Trade deals in relation to the export of our goods or services, with the EU and/or other countries and trading blocs, may also require specific commitments.

But, if the Government is moving rapidly towards “comprehensive” reform of the planning system, it’s a fair question to ask: What changes are proposed by this Government to these EU-derived regimes from the end of this year?

Isn’t this the elephant in the room?

Yours faithfully, a newtral observer.

Simon Ricketts, 4 July 2020

Personal views, et cetera

PS Two webinars coming up, free registration, covering the sorts of issues I cover in this blog. Do register and tune in if of interest:

4pm 7 July (hosted jointly by Town Legal and Francis Taylor Building): NSHIPs? The case for residential-led DCOs. I am chairing a discussion between John Rhodes OBE (director, Quod), Bridget Rosewell CBE (Commissioner, National Infrastructure Commission), Gordon Adams (Battersea Power Station), Kathryn Ventham (partner, Barton Willmore) and Michael Humphries QC (Francis Taylor Building). Register here: https://zoom.us/webinar/register/WN_7SoJtOhqQwSJNt0jtmUFVA

5pm 14 July (hosted by Town Legal): Living, Working, Playing – What Does The Covid Period Teach Us? My Town partner Mary Cook is chairing a discussion between Steve Quartermain (Government’s former chief planner, consultant Town Legal), Karen Cook (founding partner, PLP Architecture), Jim Fennell (chief executive, Lichfields), Simon Webb (managing partner, i-transport) and myself. Register here: https://zoom.us/webinar/register/WN_pSbroYIoSRioMXvtDlGP3Q

The great crested newt (courtesy: wikipedia)

Topical Four Letter Words Beginning With Z

Aren’t we bored now of Zoom meetings? They are no substitute for the real thing.

But there is another topical Z word. Should we adopt a Zone based approach to development consenting? Again, is this any substitute for the real thing?

The Government seems to have determined that it has a once in a lifetime opportunity, to (according to Robert Jenrick) “rethink planning from first principles” with a shake-up designed to accelerate the process.

The time has come to speed up and simplify this country’s overly bureaucratic planning process,” he said on Wednesday. “This government is thinking boldly and creatively about the planning system to make it fit for the future.” (England’s planning system set for shake-up Financial Times, 10 June 2020).

And you may ask yourself, well

How did I get here?

You may ask yourself

What is that beautiful house?

You may ask yourself

Where does that highway go to?

And you may ask yourself

Am I right? Am I wrong?

And you may say yourself

“My God! What have I done?”

How did we get here?

Go back to the Policy Exchange’s paper Rethinking the Planning System for the 21st Century (27 January 2020):

“The Government should announce a clean break with the land use planning system introduced in 1947 that largely continues in the same form today. This reform programme should focus on the following issues:

• Ending detailed land use allocations. The planning system should not try to systematically control what specific activity can take place on individual land plots based on fallacious projections of housing and commercial ‘need’. Local planning authorities have proved ineffective and inefficient at micro-managing land markets. In this regard, the supply of new homes, offices and other types of land use should no longer be capped by local planning authorities in local plans or by site allocations.

• Introducing a binary zonal land use planning system. Land should be zoned either as development land, where there is a presumption in favour of new development, or non-development land, where there is not a presumption and minor development is only possible in more restricted circumstances. Land zoned as development land will include existing urban areas and new urban extensions made possible by infrastructure improvements. In this new system:

• Zones should, in general, have no reference to what specific land uses are allowed on individual private land plots. Market conditions should instead determine how urban space is used in the development zone. Land and buildings in the urban area would then be able to change use without requiring the permission of the state (as long as rules on separating certain harmful uses are not broken, as detailed below).

• Zonal designations should be separate from any concept or calculation of ‘need’.

Instead, they should be dependent on metrics that determine whether land has good access potential, whether new development would cause environmental disturbance; and the potential for an existing built development to expand. Zones should be updated an ongoing basis and would need to be periodically reviewed by the Planning Inspectorate.

• These proposals do not negate the need to separate certain harmful uses that have a negative impact on neighbours, for instance a quarry next to a children’s play park. Nor do the proposed reforms negate the need to protect certain uses, for instance for their natural or heritage value. These incompatible and protected uses should be clearly defined in the local plan.”

In February 2020 co-author Jack Airey becomes no 10’s housing and planning special advisor.

Robert Jenrick publishes his pamphlet Planning For The Future (12 March 2020), setting out a range of proposals which are to form the basis of a Planning White Paper, then promised for Spring 2020 but now of course delayed.

The pamphlet picks up on some of the themes of the Policy Exchange work and particularly on the Z word, but in more cautious terms:

“Expand the use of zoning tools to support development – the government will outline further support for local areas to simplify the process of granting planning permission for residential and commercial development through zoning tools, such as Local Development Orders. The government will trial the use of templates for drafting LDOs and other zonal tools to create simpler models and financial incentives to support more effective use. The government has also launched a consultation on a new UK Freeport model, including on how zoning could be better used to support accompanying development.”

(I comment on the proposals in my 21 March 2020 blog post What To Do?).

So what is actually happening? In a House of Lords debate on 8 June 2020, there was this exchange:

Baroness Wilcox of Newport (Lab) [V]

I declare my interest as noted in the register. Can the Minister confirm the reports across the weekend media that the Government are intending to take planning decisions away from councils and give them to development corporations? This is extremely concerning after recent developments in Tower Hamlets, which resulted in the developer not having to pay between £30 million and £50 million in the community infrastructure levy?

Lord Greenhalgh

The situation at the moment is that there is a planning commission that has started under my right honourable friend Chris Pincher, the planning Minister. I cannot make any further comments about what the noble Baroness has read in the media.”

There is nothing else in the public domain about this “planning commission”, although of course, as referred to in this exchange, there has been much speculation in the media. Back to that 10 June FT piece:

“Downing Street has set up an advisory panel that includes Bridget Rosewell, the national infrastructure commissioner who recently headed a review into accelerating planning appeal inquiries, property developer Sir Stuart Lipton and barrister Christopher Katkowski.

The other members are Nicholas Boys Smith, founder of Create Streets, co-chair of the Building Better, Building Beautiful Commission, and Miles Gibson, head of UK research at advisory group CBRE.”

The piece speculates:

“Ministers hope that the reforms can be agreed in time for a wider economic announcement in July by Rishi Sunak, the chancellor, which will also include extra infrastructure spending.”

If we are talking about fundamental changes to the planning system, of course reforms cannot be “agreed” in time for July. But might we expect this delayed Planning White Paper by then? I suspect that separately and ahead of the white paper we will see legislation in relation to shorter-term responses to the current crisis, including the extension of planning permission time limits and changes to PD rights.

In the meantime, the think tank onslaught continues. The prompt for the 10 June FT piece was the publication by the Policy Exchange of a series of essays: Planning Anew: A collection of essays on reforming the planning system for the 21st century. There are pieces by Bridget Rosewell CBE, Professor Robert Adam, Charles Dugdale, Warwick Lightfoot, David Rudlin, John Myers, Jamie Ratcliff, Reuben Young, Dr Sue Chadwick, William Nicolle and Benedict McAleenan.

The essays are diffuse in their themes and I would be wary of drawing too much from them.

There are some eye-catching comments from Bridget Rosewell:

“It’s clear that we can’t stop humans planning, or probably being planners. But we must abolish the Plan as a shibboleth, a straitjacket and an industry”

“Abolishing the current planning edifice does not remove the need for frameworks for permissions. Tensions still exist and must be resolved. My review of Planning Inquiries showed that they could be done twice as fast just by applying sensible rules, most of which already existed, to manage the process. Other planning disputes are often also resolvable without having a complicated set of rules including local plan preparation and examinations in public.”

David Rudlin’s contribution, News from Nowhere: the future of planning and cities, addresses zoning full-on. It is a fantasy piece, looking back from a 2050 utopia that had been delivered in part by a change to a zoning system in 2020. To give you a flavour:

“Clara and William transferred to a water taxi, heading down the Irwell, canyoned by the towers of Manchester and Salford that William remembered being thrown-up in a brief moment of madness in the late 2010s. As they passed into the Ship Canal, Clara explained that the new spatial planning system had allowed for the much more balanced growth of the conurbation. The inner areas of Manchester and Salford had been developed with mid-density neighbourhoods of housing, apartments and workspace resembling the cities of continental Europe. Higher density nodes, like those he had seen from the train, had been promoted around transport interchanges and local centres. There were still plenty of suburbs, of course, like the one where Clara lived with her family that they would visit later, but the overall structure of the conurbation made much more sense and was far more sustainable.

This had happened as a result of the new planning structure introduced in 2020. It had been based on a three tier system that had finally given some clarity to the way that the country had been planned, as well as rejuvenated the role and status of planners like Clara. The top tier was a National Spatial Plan, the middle was City Region / County Spatial strategies and the third was district-level zonal coding plans, but more of that in a moment”

The piece (and indeed the interesting debate about it when David Rudlin guested on Have We Got Planning News For You on 18 June 2020) illustrates the problem with the current debate, because surely what is contemplated (and flagged in March by Robert Jenrick), whilst no doubt “radical”, is not an across-the-board move to a system of comprehensive zoning plans – and so there is the risk that we all have a theoretical debate in one side of the room and fail to engage with the more practical reality that may be emerging across the way. I sensed the same impractical utopianism in another think tank piece published this week: Planning for the future: How flexible zoning will end the housing crisis (Anthony Breach, Centre for Cities, 19 June 2020).

Because the real debate is not a straight-forward one. How can we focus so much on the Z word before considering:

⁃ what are the Government’s policy objectives, and how does it prioritise as between them?

⁃ in which ways does the Town and Country Planning Act system play its part in meeting those objectives?

⁃ in what ways can the operation of the existing system be improved and in what ways are changes required, so as not just to reflect current policy objectives but as a resilient engine to be applied towards whatever may be future political priorities? Or is the idea to lock the engine into a specific political direction?

⁃ how do we guard against unintended consequences and against new blockages forming, if for instance the stress point between the potential for profit and the restriction on certain forms of development moves exclusively to the process of arriving at the zoning plan or scheme? That stress point is where there is the potential for delay, political difficulties and legal challenge. (In our present system of course we have multiple stress points!).

⁃ to what extent would a form of zoning (ie a greater level of predictability being given via the rule-setting and policy-forming stages in return for, at the project stage, less flexibility and less room for political discretion) be better or worse than the current system at achieving those policy objectives?

It’s difficult because those policy objectives will surely not just not include the Covid-accentuated need for housing and economic activity, but the need for communities to continue to have an appropriate level of influence over outcomes and the need not to rule out, through rigid prescription, unexpected forms of development which may be in the public interest but simply not anticipated by the plan?

For a really good, detailed analysis of zoning, different models, the pros and cons and potential application to our English system I recommend Jennie Baker’s blog post Should zoning be introduced in England? (Lichfields, 14 May 2018). I also strongly recommend that you read Zack Simons’s #planoraks blog post Welcome to Euclid! (16 June 2020), which, aside from examining the landmark 1926 US Supreme Court case on zoning, Village of Euclid v. Ambler Realty Co, pulls us back to the guidance that the Planning Advisory Service have already published on preparing Local Development Orders, surely one of the prime mechanisms within our existing system for taking a more zoning-based approach (as is specifically mentioned in that passage from Planning For The Future).

Personally speaking, surely there are also two other opportunities to expand the use of existing mechanisms, so as to move more towards what might be termed a zoning-based approach to planning, if this what is required.

First, there is the potential to expand the use of the permission in principle route, introduced in the Housing and Planning Act 2016 but currently far too narrow in its scope. What about building on the existing regime by placing an enforceable duty on LPAs to identify land that is appropriate for permission in principle specifying the location, land use and development parameters? As suggested in a paper by Field, Somerville and Bischoff, Permission in Principle under the Housing and Planning Act 2016: Considering an Australian Approach [2017] JPL 338, such ‘zoning’ overlay permissions in principle could either be promoted by local planning authorities as part of their local plan/ separate mini-development plans, by neighbourhoods through neighbourhood plans or alternatively requested by landowners/ promoters if certain defined criteria are met.

Secondly, the whole Use Classes Order/General Permitted Development Order system is already a form of zoning. Any further liberalisation in relation to, for instance, “high street” uses, is utilising an existing form of zoning. It might be said that recent problems in relation to permitted development have been as a result of the GPDO not being sufficiently prescriptive in relation to building specifications (or perhaps the lack of sufficient protections by way of the Building Regulations) and as a result of the ability to dodge affordable housing or other social infrastructure requirements, rather than through any more fundamental flaw in the basic concept.

As we try to make sense of all this, I have two final suggestions:

My firm is co-hosting with Landmark Chambers a, yes, Zoom, webinar panel discussion on these very issues at 5pm on 23 June 2020. I am chairing the panel which comprises Bridget Rosewell, Sir Stuart Lipton, Steve Quartermain, John Litton QC, Charlie Banner QC and my Town partner Duncan Field. We have had over 800 registrations so far – I am not the only one focused on the Z word it seems – but you can still register for free here.

Alternatively, if you need some fresh air after all this, there is another topical four letter word beginning with Z. Zoos are now open.

Simon Ricketts, 19 June 2020

Personal views, et cetera