Where do the Planning White Paper proposals leave planning committees and communities?
26 August 2020
In the foreword to the Planning White Paper the Prime Minister sets out what it aims to achieve and how he wants to change “our outdated and ineffective planning system”. Robert Jenrick has commented that if the proposals are adopted then “communities will be reconnected to a planning process that is supposed to serve them”.
Some might argue that this “outdated and ineffective” system and those who operate and use it have shown themselves to be pretty adaptable in 2020, having accommodated virtual planning committees and virtual site visits as well as virtual appeals, yet more new permitted development rights and new ways of publicising applications.
The planning system has kept going despite lockdown and social distancing. Others might suggest that in the current system the public has a chance to take part in a local plan process for site allocation and policy making, in neighbourhood planning and in commenting on specific applications that affect them, and that all of these are real and effective opportunities for engagement.
For most, I suggest, the time when they really become involved in planning in a meaningful way is when they want planning permission or when they face the prospect of permission that affects them. At this stage they will often consider in detail what is proposed, make their comments and engage with their local elected representatives. At this stage, under the current system, they feel that they still have, and they ought to still have, an opportunity to be heard and to make a difference. Under the new system that opportunity seems likely to be much reduced.
What role will planning committees play in the future?
Planning committees are regarded in the existing system as being an important mechanism by which the public is able to engage with the decisions that affect them, their way of life, wellbeing and environment for many years to come.
But what is the future for our planning committees under the proposed system in which a good deal of the decision-making will be at local plan stage in many situations? The answer is very unclear at this stage but the following points come from our reading of the White Paper:
- If the new proposals are adopted the role of planning committees could be severely limited. The number and type of applications they would be asked to consider would be much reduced and the role of exercising discretion would be less than under the current regime. Some may welcome this as committees can undoubtedly be a source of frustration for officers and applicants, but they are also part of the checks and balances of local democracy with the elected members representing the community. The community also has an opportunity to make their feelings on a specific application known to their local representatives. In the new world, though the expressed aim is to increase public involvement, it seems likely that it will be reduced. We suspect that less opportunity to get involved before the decision is made may well lead to a greater desire to challenge it through the courts after it has been made.
- The White Paper seems to herald a move towards much less judgement being exercised in planning matters and much more of a standardised, rules-based process in which applications will be expected to ‘tick boxes’, even to be judged by an algorithm. Algorithms have not been seen in a good light in relation to the exercise of judgement following publication of the A-level exam results. Do the authors of the White Paper assume that each application for planning permission is broadly the same and all the issues involved are the same? Or do they, as it is tempting to suspect, care more for the speed of decision-making than for its quality? Planning is a complex process; each application is unique and has its own issues and a move to a rules-based objective system should be a cause for great concern for us all. Until now it has been ‘trite law’ that each application is dealt with on its own merits, on a case-by-case basis. It seems that all of that may be thrown out of the window if the new proposals are adopted as drafted. Can this possibly lead to a high standard of decision-making and beautiful, locally sympathetic development?
- The White Paper proposes that “the well-established time limits of 8 or 13 weeks for determining an application from validation to decision should be a firm deadline – not an aspiration which can be got around through extensions of time as routinely happens now”. Superficially this may seem like a good way to speed up decision-making, but we suspect it will have quite the reverse effect. The ability of committee members to request a deferral of a decision while more information is obtained or a problem is addressed, or because they want a site visit, will be greatly curtailed. Planning committee members may well be tied to determining an application on the day of committee and this may lead to meetings becoming very long so that all matters can be discussed on the day in full. Also, to members may not feel able to grant permission for a development which they might have approved with a bit more information or explanation. If, as it may well be, the result of pressure to decide ‘on the day’ is a refusal, this will inevitably lead to planning by appeal and that is not at all likely to lead to speedy decision-making. For applicants, the strict time limit will mean that they will need to make sure their application is of a high quality before it is submitted and the clock starts to run. Pre-application consultation will be more important. That takes up Local Planning Authority (LPA) resources and, although useful, doesn’t guarantee a favourable outcome in front of planning committee members.
- The situation set out in the previous paragraph is complicated, however, because the White Paper proposes jeopardy for planning committees, or more accurately for councils, if they refuse permission and it is later approved at appeal. It proposes that in order to promote proper consideration of applications by planning committees, “where applications are refused… applicants will be entitled to an automatic rebate of their planning application fee if they are successful at appeal”. This may, contrary to what I said in the previous paragraph, make committees fearful of refusing permission, especially where fees are high and they may default to an approval even if they are not happy. This may result in poor decisions or permissions on which many conditions are imposed to try to address the outstanding concerns.
- The Paper also proposes “the delegation of detailed planning decisions to planning officers where the principle of development has been established, as detailed matters for consideration should be principally a matter for professional planning judgment”. It may well be a positive thing for more technical decisions to be delegated. To ensure robust decisions that are not open to challenge, LPAs will need to consider their schemes of delegation and also the quality of the delegated decision-making process and the way in which it is recorded.
- The reduced role of committees may well result in planning committees meeting less often due to limited work or to members becoming disillusioned with their role, making it difficult to retain experienced members. Neither of these factors is likely to result in a sense that local democracy is operating efficiently in the planning system.
So will the reforms promote confidence and further engagement in the planning process? Time will clearly tell but our view is that it will not. There is a risk that planning committees are reduced to rubber stamping officers’ decisions or to being seen as insignificant by the public because few applications will be referred to them and members may find it difficult to build good quality experience.
Will this promote more engagement by the public or simply more decisions made behind closed doors, less transparency and a sense that the public is deprived of their opportunity to have their say? More judicial reviews are surely inevitable.
Many decisions of planning committees have frustrated many people over many years, but they are a valued link between the public and the decision made.
We will need to watch this space but we are not at all sure that under the proposed system communities “will be reconnected to the planning process” as Mr Jenrick suggests. However we note that July 2020 saw the biggest month on record for the submission of planning applications.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at August 2020.