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Tom Cosgrove KC looks at the government’s radical planning reform and the opportunities and challenges ahead for practitioners
It is hard to avoid reading about planning.
Reform of the planning system in England is at the heart of the agenda of the new Labour government. It has promised to build more than 300,000 new homes a year (1.5 million homes in England over the course of the Parliament). If it manages this, it will achieve something not done for nearly 40 years. In her first speech the new Chancellor of the Exchequer did not mince her words and stated that Labour promised to grasp the nettle of planning reform, seeing the planning system as ‘antiquated’ and ‘as a graveyard of economic ambition’.
This will all inevitably involve significant legislative and policy reform. In that regard, a large amount of detail is awaited, but the extent of the political ambition is clear. The government has set out its intention to adopt a new National Planning Policy Framework (NPPF) before the end of 2024. The recent consultation on the proposed NPPF, which ran until 24 September, included 106 questions for stakeholders to consider. The NPPF is a crucial document in shaping planning decisions across the country. The consultation draft proposed significant changes to core elements that influence planning decisions, including revisions to the calculation of local housing need, updates to the process for creating local plans, and new policies affecting development in the green belt. Notably, the draft introduced a definition of ‘grey belt land’ with a focus on prioritising development on both brownfield and grey belt sites. Additionally, the revised NPPF removes the policy restrictions on onshore wind farms, expanding support for renewable energy projects while adjusting other key areas in ways that could have substantial impacts on future planning decisions.
This early part of the planning reform plan is just one piece in a large and complicated planning puzzle that the new government is aiming to complete at pace. To achieve 1.5 million homes in five years it will have to move fast. To that end it has also indicated there will be new ‘national development management policies’ and even entirely ‘new towns’ each with at least 10,000 homes. A new taskforce has been appointed to recommend appropriate locations within the next year for the new towns. Further, the government intends to implement a new plan making system from the summer-autumn of 2025. We are told there will be a new tier of mandatory strategic planning and a new Planning and Infrastructure Bill as well as a ‘long term plan for housing’ which will include an ‘affordable housing revolution’. In short, the ambition is huge and the pace of announcements at least is fast moving.
For the 300 hundred or so barristers that regularly undertake and specialise in this work, the next few months and years are likely to be busy, challenging and incredibly important for the country. Planning and environmental work nearly always operates in a complex world of mixed law and policy with a heavy sprinkling of national or local politics. Sometimes it is hard to distinguish between points of law and points of application of policy and the courts have been filled with case law for several years on the distinction between these points in the text of earlier versions of the NPPF.
Unlike many cases and disputes in other areas of practice at the Bar which are decided by an independent judiciary many key planning decisions are decided initially and then on appeal by politicians through decisions that are ‘called in’ or ‘recovered’ by government and in the context of broad planning judgments. Sometimes government ministers disagree with the conclusions of detailed reports from planning Inspectors. These highly ‘political’ decisions are usually subject to further challenges only on points of law in the higher courts.
Planning has, of course, always been ‘political’. And perhaps it should be. Where, when and how developments are built can be – as many members of Parliament and local authorities know to their cost – very emotive and determinative issues for their constituents. It is also well understood that the ability for a planning system to efficiently deliver development proposals is fundamental to the operation of a thriving economy. All main parties accept that housing is needed urgently across much of the country.
But it is also true that the legal ‘system’ underpinning it has become ever more complex and cumbersome. That combined with politics does not generally provide for a fast-track system of delivery. The availability of skilled workers, a lack of robust funding for local planning authorities and the state of the economy are key factors too in actually building out projects when they have consent. Successive governments have tried to deliver planning reform and build more houses and have not succeeded in delivering their ambitious targets.
Those of a certain vintage practising in planning may recall the fanfare of a new National Planning Policy Framework from the then still fairly new coalition government in 2012.
That initial ‘NPPF’ document promised radical change and a new ‘presumption in favour of sustainable development’ to address what was even then an identified housing crisis. It had a Foreword that stated:
‘People have been put off from getting involved because planning policy itself has become so elaborate and forbidding – the preserve of specialists, rather than people in communities. This National Planning Policy Framework changes that .’
In truth it did not do that despite no doubt noble ambitions.
As it turned out, the subsequent years have proved that the NPPF (and the various revisions of it) was far from clear and was not in truth ‘simply and clearly written’, at least so far as the courts were concerned. It remained a preserve of specialists.
Even now there is plenty of litigation ongoing about the meaning of current NPPF policy and the related mass of regulation and supplementary guidance and legislation that has grown and now flourishes in the field of planning and environmental work.
A real problem has been that the application of the legal principles to the interpretation of policy has not always proved to be that easy. While this has been blamed by some on the overly legalistic approach that lawyers have taken to construing planning policy, even specialist planning judges in the highest courts have had trouble in providing clarity and consistency when interpreting planning policy.
So will the new proposed NPPF reforms as the first jigsaw puzzle piece fare any better?
We are currently in a period of limbo. The very broad nature of radical planning reform has been outlined by Labour but is as yet lacking in detail. The NPPF consultation is the only real detail we have as yet before the many extensive legislative and policy measures promised in the near future arrive. The new NPPF’s wording is in parts broad and is likely to be tested and challenged as earlier versions have been. This may cause delays and uncertainty.
I suspect there will be challenges ahead – at least to the speed envisaged for delivery. The arrival of a new NPPF in 2012 and the subsequent years of litigation should at the very least provide food for thought for politicians and lawyers alike as to potential pitfalls in delivering high quality and important infrastructure in a system of consents that requires a complex interplay of politics, policy and law. The new language proposed is different but in some regards open to interpretation. The courts will still have to grapple with the tension between political and planning judgments and the legal interpretation of policy and process in the face of a desire by often well-funded parties to litigate planning matters which matter to them. And planning does matter.
Practitioners at the Bar will inevitably have a critical role in leading key cases and grappling with the meaning and application of new and extensive proposed reforms. Happily, practitioners in these areas inhabit well-run and well-organised sets of chambers. They also happen to be some of the most talented practitioners at the Bar with diverse legal skills across a range of types of advocacy. For junior barristers starting a career in planning and environmental work there could hardly be a more exciting and dynamic time to be joining this area of the profession. The Planning and Environment Bar Association (PEBA) along with the main sets operating in these areas of work are working hard to ensure our areas of the Bar embrace diversity and are open to all. It is particularly critical that the Bar provides the highest quality practitioners with a diversity of skills and backgrounds to represent all sides of the debate in the many important, high profile and nationally important planning cases that lie ahead and which will have to grapple with the extensive and radical reforms proposed that are so important for our country to get right.
Grasping the nettle of planning reform: In her first speech as new Chancellor of the Exchequer, Rachel Reeves described the planning system as ‘antiquated’ and ‘as a graveyard of economic ambition’. © Mark Thomas/Shutterstock
Tom Cosgrove KC is Chair of the Planning and Environment Bar Association and Joint Head of Chambers of Cornerstone Barristers.
It is hard to avoid reading about planning.
Reform of the planning system in England is at the heart of the agenda of the new Labour government. It has promised to build more than 300,000 new homes a year (1.5 million homes in England over the course of the Parliament). If it manages this, it will achieve something not done for nearly 40 years. In her first speech the new Chancellor of the Exchequer did not mince her words and stated that Labour promised to grasp the nettle of planning reform, seeing the planning system as ‘antiquated’ and ‘as a graveyard of economic ambition’.
This will all inevitably involve significant legislative and policy reform. In that regard, a large amount of detail is awaited, but the extent of the political ambition is clear. The government has set out its intention to adopt a new National Planning Policy Framework (NPPF) before the end of 2024. The recent consultation on the proposed NPPF, which ran until 24 September, included 106 questions for stakeholders to consider. The NPPF is a crucial document in shaping planning decisions across the country. The consultation draft proposed significant changes to core elements that influence planning decisions, including revisions to the calculation of local housing need, updates to the process for creating local plans, and new policies affecting development in the green belt. Notably, the draft introduced a definition of ‘grey belt land’ with a focus on prioritising development on both brownfield and grey belt sites. Additionally, the revised NPPF removes the policy restrictions on onshore wind farms, expanding support for renewable energy projects while adjusting other key areas in ways that could have substantial impacts on future planning decisions.
This early part of the planning reform plan is just one piece in a large and complicated planning puzzle that the new government is aiming to complete at pace. To achieve 1.5 million homes in five years it will have to move fast. To that end it has also indicated there will be new ‘national development management policies’ and even entirely ‘new towns’ each with at least 10,000 homes. A new taskforce has been appointed to recommend appropriate locations within the next year for the new towns. Further, the government intends to implement a new plan making system from the summer-autumn of 2025. We are told there will be a new tier of mandatory strategic planning and a new Planning and Infrastructure Bill as well as a ‘long term plan for housing’ which will include an ‘affordable housing revolution’. In short, the ambition is huge and the pace of announcements at least is fast moving.
For the 300 hundred or so barristers that regularly undertake and specialise in this work, the next few months and years are likely to be busy, challenging and incredibly important for the country. Planning and environmental work nearly always operates in a complex world of mixed law and policy with a heavy sprinkling of national or local politics. Sometimes it is hard to distinguish between points of law and points of application of policy and the courts have been filled with case law for several years on the distinction between these points in the text of earlier versions of the NPPF.
Unlike many cases and disputes in other areas of practice at the Bar which are decided by an independent judiciary many key planning decisions are decided initially and then on appeal by politicians through decisions that are ‘called in’ or ‘recovered’ by government and in the context of broad planning judgments. Sometimes government ministers disagree with the conclusions of detailed reports from planning Inspectors. These highly ‘political’ decisions are usually subject to further challenges only on points of law in the higher courts.
Planning has, of course, always been ‘political’. And perhaps it should be. Where, when and how developments are built can be – as many members of Parliament and local authorities know to their cost – very emotive and determinative issues for their constituents. It is also well understood that the ability for a planning system to efficiently deliver development proposals is fundamental to the operation of a thriving economy. All main parties accept that housing is needed urgently across much of the country.
But it is also true that the legal ‘system’ underpinning it has become ever more complex and cumbersome. That combined with politics does not generally provide for a fast-track system of delivery. The availability of skilled workers, a lack of robust funding for local planning authorities and the state of the economy are key factors too in actually building out projects when they have consent. Successive governments have tried to deliver planning reform and build more houses and have not succeeded in delivering their ambitious targets.
Those of a certain vintage practising in planning may recall the fanfare of a new National Planning Policy Framework from the then still fairly new coalition government in 2012.
That initial ‘NPPF’ document promised radical change and a new ‘presumption in favour of sustainable development’ to address what was even then an identified housing crisis. It had a Foreword that stated:
‘People have been put off from getting involved because planning policy itself has become so elaborate and forbidding – the preserve of specialists, rather than people in communities. This National Planning Policy Framework changes that .’
In truth it did not do that despite no doubt noble ambitions.
As it turned out, the subsequent years have proved that the NPPF (and the various revisions of it) was far from clear and was not in truth ‘simply and clearly written’, at least so far as the courts were concerned. It remained a preserve of specialists.
Even now there is plenty of litigation ongoing about the meaning of current NPPF policy and the related mass of regulation and supplementary guidance and legislation that has grown and now flourishes in the field of planning and environmental work.
A real problem has been that the application of the legal principles to the interpretation of policy has not always proved to be that easy. While this has been blamed by some on the overly legalistic approach that lawyers have taken to construing planning policy, even specialist planning judges in the highest courts have had trouble in providing clarity and consistency when interpreting planning policy.
So will the new proposed NPPF reforms as the first jigsaw puzzle piece fare any better?
We are currently in a period of limbo. The very broad nature of radical planning reform has been outlined by Labour but is as yet lacking in detail. The NPPF consultation is the only real detail we have as yet before the many extensive legislative and policy measures promised in the near future arrive. The new NPPF’s wording is in parts broad and is likely to be tested and challenged as earlier versions have been. This may cause delays and uncertainty.
I suspect there will be challenges ahead – at least to the speed envisaged for delivery. The arrival of a new NPPF in 2012 and the subsequent years of litigation should at the very least provide food for thought for politicians and lawyers alike as to potential pitfalls in delivering high quality and important infrastructure in a system of consents that requires a complex interplay of politics, policy and law. The new language proposed is different but in some regards open to interpretation. The courts will still have to grapple with the tension between political and planning judgments and the legal interpretation of policy and process in the face of a desire by often well-funded parties to litigate planning matters which matter to them. And planning does matter.
Practitioners at the Bar will inevitably have a critical role in leading key cases and grappling with the meaning and application of new and extensive proposed reforms. Happily, practitioners in these areas inhabit well-run and well-organised sets of chambers. They also happen to be some of the most talented practitioners at the Bar with diverse legal skills across a range of types of advocacy. For junior barristers starting a career in planning and environmental work there could hardly be a more exciting and dynamic time to be joining this area of the profession. The Planning and Environment Bar Association (PEBA) along with the main sets operating in these areas of work are working hard to ensure our areas of the Bar embrace diversity and are open to all. It is particularly critical that the Bar provides the highest quality practitioners with a diversity of skills and backgrounds to represent all sides of the debate in the many important, high profile and nationally important planning cases that lie ahead and which will have to grapple with the extensive and radical reforms proposed that are so important for our country to get right.
Grasping the nettle of planning reform: In her first speech as new Chancellor of the Exchequer, Rachel Reeves described the planning system as ‘antiquated’ and ‘as a graveyard of economic ambition’. © Mark Thomas/Shutterstock
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