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What is on the other side of the hill?

The planning system in England and Wales is again in transition and the rules of engagement in the battle to secure a worthwhile planning consent are just about to change. It is, in this context, always a good idea to pause and think what is coming and plan for the next assault. As Wellington put it “the whole art of war consists of guessing at what is on the other side of the hill”.

One of the interesting aspect of the recent general election was that there was cross party support for housing growth and, in turn, for the continued protection of the Green Belt. It is also clear from the last Queen’s Speech that one of the things a minority Government can successfully do is to continue the momentum set by the Housing White Paper and push through further reforms to the English planning system. This is very likely to come by way of modest policy review and minor regulatory changes because there will be so little Parliamentary time in the wake of the impending Brexit reforms.

One of the key limbs of this strategy is the proposed introduction of a standardised methodology to determine the Objectively Assessed Need (OAN) for housing as recommended by the Local Housing Plans Expert Group. The new methodology is to be introduced by March 2018 and is intended to make plans easier to produce. However, this isn’t all about local plan making and this is reflected in the further proposal that amendments are made to the National Planning Policy Framework to give local authorities the opportunity to have their housing land supply agreed and fixed on an annual basis. Gavin Barwell, the former Housing Minister, told an audience at a recent housing summit at our offices that these measures were directed at “removing conflict from the planning system” and would facilitate local plan making and planning decisions without being deflected and distracted by an “exhaustive numeric exercise”.

It is also clear that whilst austerity measures are taking their toll on the local authority resources, they are also having an impact upon the Planning Inspectorate who are trying hard (and generally failing) to meet the ever increasing demand for appeals by public inquiry. Their response isn’t to recruit more Inspectors, but to increasingly rely upon appeal hearings. This can, for example, be seen in the following directions from the Inspectorate:

“Other matters relating to housing supply, layout, access etc. can all be dealt with in a Statement of Common Ground to accompany the appeal documents at a Hearing. It would seem to me a disproportionate use of the Councils [sic] time and resources, and indeed the inspectorates [sic], would be taken up by holding an Inquiry in this case”

“The complex and technical nature of [the] matter, air safety, that is the subject of a reason for refusal of the application and about which the Inspector will wish to ask questions of the evidence presented [at a hearing]”

“[The evidence can be] satisfactorily explored through the inquisitorial approach followed by an Inspector leading a discussion at a hearing”.  

It is self-evident that an appeal process that take some 35 weeks rather than a minimum of 50 weeks must save cost and this is particularly the case where the Inspector can conduct a hearing in a day and cover the same amount of issues as might take three days at inquiry. This is what has informed the above approach and it is this same procedural saving which has given focus to the measures set out in the White Paper. It is also an approach that is now reinforced by the recent Richborough judgement ([2017] UKSC 37) and the confirmation by the Supreme Court that the focus of planning decisions are “matter of pure planning judgement, not dependent on issues of legal interpretation”.

In short, the direction of travel is away from long and arduous planning inquiries and towards plan promotion and more contained and managed cases at appeal. It is, in this context, only a matter of time before the Inspectorate direct that only the most complex of cases require an inquiry and with the introduction of standardised OAN and fixed five year supply figures this will come down hard on to most housing cases. It may, in truth, come sooner than we expect. However, we have been here before with major infrastructure schemes and also with local plans. Both previously required long and exhaustive assessment at public inquiries which could go on for many months and even years and now with the increased reliance upon preparatory work and pre-examination sessions it has been possibly to reduce the examination process to a matter of days and weeks.

We know, in particular, from the promotion of major infrastructure projects that this isn’t a disaster for complex and contentious projects. However, it does mean that these arrangements place far greater responsibility upon the promoters, ensure it is a far longer game and require structure and strategy to deliver an implementable scheme. It is also the case that the key to success is all about the energy and focus of the team and their perseverance in ensuring that there isn’t any slippage or moment of weakness in the promotion of the development scheme.   

Again, as Wellington put it “all the business of war, and indeed all the business of life, is to endeavour to find out what you don't know by what you do”.

22 September 2017