OBR, Where Art Thou?

In the Coen Brother’s 2000 masterpiece after which this blog is ever-so cleverly named, silver-tongued Ulysses Everett McGill convinces the two convicts to whom he is shackled to escape with him in order to retrieve treasure from the soon-to-be bottom of a reservoir. As it transpired there was no treasure. McGill simply wanted to stop his former wife getting remarried. The only thing that his companions discovered was that McGill’s rhetoric did not match the reality (“I only had two weeks left on my sentence”, said one of them, Pete Hogswallop, upon finding out…).

Yesterday’s MHCLG press release, “Pro-growth package unshackling Britain to get building”, is also strong on rhetoric.

New measures to slash delays and get Britain building faster through landmark Planning and Infrastructure Bill

New powers for Secretary of State could stop councils rejecting planning permissions, tackle blockers in the courts, alongside plans to accelerate reservoirs, windfarms and large housing schemes

Turbocharging the Plan for Change to create high-paying jobs, put money back into people’s pockets, and secure more homegrown clean energy

This comes a month after the new Secretary of State, Steve Reed, committed to “leaving no stone unturned to build 1.5 million homes”.

“Through major planning reform and investment, we will break down the barriers to development and build the 1.5 million homes this country needs as part of our Plan for Change.”

The ‘call to arms’ comes ahead of a blitz of new measures expected to be announced in the coming weeks and months, including new towns across the country and the landmark Planning and Infrastructure Bill passing into law.

From a purely planning point of view (one can only 'build, build build' if there are people able to 'buy, buy, buy'...), and from a purely residential point of view, for the Government to get as close as possible to the 1.5 million home target then the window to encourage the submission of more planning applications on sites of all sizes, and to introduce measures to support the determination of those applications (and those in the pipeline already) more quickly, can be measured in months if not weeks. It is through those prisms, and against these two benchmarks, more applications determined more quickly, that any new measures and any new powers need to be judged.

Nicola Gooch has helpfully summarised the proposed amendments to the Planning & Infrastructure Bill, which I replicate here as follows, with the suggestion that they be assessed whilst reading against those two benchmarks.

The amendments include:

• An amendment to allow water related nationally significant infrastructure projects to be carried out by third parties appointed by a water company – as opposed to the water company itself. Which would widen the range of people who can build reservoirs through the NSIP process;
• Amendments that reverse or undo changes to the NSIP regime that were originally included in the bill – such as removing proposed changes to the acceptance test for a DCO, or deleting the inclusion of powers to require applicants to submit additional information before accepting an application;
• Changes that limit the effect of clause 28 of PIB – which governs the use of forestry estate for renewable electricity – so that it no longer applies in Wales, and additional constraints on how it will apply in England, and when the Secretary of State’s consent may be required;
• An amendment that allows the Secretary of State to make regulations governing the impact of new Wind Farms on “relevant seismic array systems” used for defence purposes when the act is passed;
• Changes that would allow the Secretary of State to grant deemed listed building consent, at the same time as granting deemed planning permission under Transport and Works Act 1992, provided that the Secretary of State complies with the legal duties to have special regard to listed buildings and pay special attention to conservation areas when doing so. This is alongside a later amendment that imports the legal duty to have special regard to the desirability of preserving listed buildings into the decision-making process for deemed planning permissions more generally;
• The introduction of a potentially very significant new provision that would empower the Secretary of State to give directions restricting the ability of local planning authorities in England to refuse planning permission or permission in principle for specified types of applications in specific circumstances;
• Changes that would automatically extend the lifespan of planning permissions that were subject to legal challenge – so that the implementation period is automatically extended by: 1) a year when a someone gets permission to challenge a planning consent; 2) a year when someone gets permission to appeal to the Court of Appeal; and 3) two years if the case then goes to the Supreme Court;
• Similar provisions are also included for outline planning permissions, which also extend the timescales for submission of reserved matters, and listed building consents;
• Amendments that state, outright, that Natural England does not have to respond to requests for advice from Local Planning authorities in relation to: 1) Planning applications for specific developments; 2) Discharge of condition applications; 3)Applications for permission in principle for a specific development; and 4) Applications for Reserved Matters Approvals;
• Provided that it first publishes a statement setting out how it intends to deal with requests for advice to which it no longer has a duty to respond; and reviews that statement every five years; and
• Corrects the drafting of Schedule 6 of PIB (which adjusts how the habitat regulations would affect Ramsar Sites) to ensure that the Habitats Regulations protection is extended to all Ramsar sites affected by any plans or projects in England as opposed to only protecting Ramsar sites in England (which is the effect of the current drafting).

I do not know enough about the NSIP regime and planning for water infrastructure and energy generation to know how transformative these amendments will be in those areas, but there is nothing here that will support the submission of more applications for new homes and for those applications to be determined more quickly.

The ability of a Secretary of State to give directions restricting the ability of LPAs to refuse planning permission or permission in principle for specified types of applications in specific circumstances might prevent, for example, outline applications on allocated sites being refused against officer recommendations (Steve Reed has shared something online today about planning committees ‘unreasonably blocking’ housing developments), but, of course, were I crafting the national scheme of delegation (perhaps the only measure in the Bill of actual, practical, day-to-day significance), outline applications on allocated sites would be delegated to officers.

So why the gap between rhetoric and reality? Well this piece in the FT over the weekend trailing the announcements is instructive.

The bill — designed to fast-track big infrastructure schemes — has been working its way through parliament and is due to begin its report stage in the House of Lords from October 20. The government wants the legislation to reach the statute book by early November, giving time for the independent Office for Budget Responsibility to analyse its potential upside for the economy before the Budget in late November.

Officials hope the OBR will acknowledge that the reforms will boost growth and generate several billion pounds in future extra tax revenues, giving chancellor Rachel Reeves extra wriggle room as she seeks to tackle a huge hole in the public finances. The OBR has previously estimated that the Labour government’s first changes to the planning system would generate more than £3bn of annual extra tax by the end of the decade.

The growing frustration on the part of the development industry, and it’s small and medium-sized operators especially, is that every press release about turbocharging this and slashing that takes ministerial and civil service time away from encouraging the actual submission of more planning applications on sites of all sizes, and the introduction of actual measures to support the determination of those applications (and those in the pipeline already) more quickly.

In terms of determining applications, where is, for example, the afore-mentioned national scheme of delegation? How can validation requirements, especially for small, outline applications, be made more proportionate? How long would a template S106 Agreement have taken to emerge had Town Legal not picked up the mantle? For how much longer will BNG prevent brownfield sites coming forward? How can a pre-app and a PPA cost over £100,000, but there still be statutory consultee responses outstanding six months after submission? How much of the £39bn Social and Affordable Homes Programme will actually be spent by RPs on S106 stock? How can we take the grit out of the system (TM Paul Smith). These are issues that have been subject to welcome working papers earlier in the year, responses to which are now eagerly awaited.

In terms of encouraging applications, especially in the context of a world within which local plan coverage is actually likely to get even worse before it gets better (relatedly, can the NPPF be more supportive of applications on draft allocations in plans now delayed because of local government reorganisation?), where are a set of bold, ambitious NDMPs to operationalise a ‘default yes’ position?

Here, for example, are four interrelated NDMPs drafted by Lichfields to illustrate their transformative potential.

1. PFSD (Presumption in favour of sustainable development): Maintains the longstanding PFSD that has existed since 2012, but with an additional ‘limb’ that encourages approval of development that qualifies as “acceptable in principle”, unless, in exceptional circumstances, there are severe, clearly evidenced adverse impacts that strongly outweigh the benefits.
2. EDM (Effective decision making): Promotes proportionate, timely decisions, discourages unnecessary information requests, and puts necessary limits on planning’s role in solving issues properly to be addressed by other regulatory regimes.
3. DAIP (Development acceptable in principle): Defines ‘Acceptable in Principle’ across three contexts—within built-up areas, outside built up areas, and around transport hubs—with criteria for each. It includes general standards (e.g. for design, amenity, and biodiversity) and gives substantial weight to qualifying development.
4. NFD (Need for development): The presence of unmet need can be relevant in triggering policy provisions but is not always straightforwardly assessed locally. This policy establishes when unmet need should be assumed for housing, economic and town centre development. It simplifies evidence requirements and supports growth sectors identified in the UK’s Industrial Strategy.

Do you really want to leave no stone unturned, Secretary of State?

Now, were you to read this Jack Airey blog you might reasonably conclude that it is amazing that anything happens in Government at all let along anything positive, and any commentary on the broader reform agenda should be couched in terms of an overall positive direction of travel. Everything that I have seen and read largely points to a planning system that could be more coherent and functional in the next Parliament. SDSs, EDPs, and so on. It is the the pace of change in relation to the here and now (the 'grit', 'the snagging list') where there is perhaps cause to quibble.

“We’re in a tight spot”, Ulysses McGill was heard frequently to say during ‘Oh Brother, Where Art Thou?', and there are likely people within HMT feeling the same. I am sure though that the OBR could be convinced of an actual plan to get out of it.