RTPI priorities are right but system needs full legal fix

The RTPI’s response to MHCLG’s “Planning for the Future” policy paper identifies five key priorities for planning reform in England.  These priorities make sense in terms of having a fit for purpose 21st century planning system that meets the country’s needs in the aftermath of Covid-19.  However, the current legal system that underpins planning is decidedly not fit for purpose and a complete overhaul is needed.  MHCLG is proposing a Planning White Paper which will inevitably bring changes to the law.  We do not need more tinkering.  This opportunity should be used for a full review of the law – both the main Act and the subordinate legislation.

In “Priorities for planning reform in England”, the RTPI makes five key recommendations:

  • Invest in place – with planning properly resourced so it can deliver the Government’s objectives on housing and “creating beautiful, sustainable places”
  • Refocus planning on 21st century issues – whilst accepting that housing delivery is a crucial requirement, the RTPI says it is crowding out decarbonisation and climate resilience, design and beauty, connectivity and accessibility, wellbeing and public health and economic growth
  • Display leadership on the digital transformation of planning – making it both more inclusive and more efficient
  • Provide a clear direction for strategic planning – improving on the “duty to cooperate” and with an examination system appropriate to different scales of plan
  • Support a strong plan-led system – considering fixed time-scales, more prescribed format and content, and stronger legal status for plans

The RTPI backs up these recommendations with evidence from previous research work and deals with the myth that further de-regulation of planning will solve the housing affordability crisis.  The response expresses concern about further moves to increase permitted development rights and to trial more US-style zoning.  It is certainly difficult to reconcile these ideas with MHCLG’s own objective of “creating beautiful, sustainable places”.

The RTPI response should be taken on board by Government in drafting the forthcoming White Paper.  However, it does not specifically address the nature and extent of legislative reform that is needed.  The Law Commission succinctly stated the nature of the problem in its “Thirteenth Programme of Law Reform” (2017): “Planning law in England and Wales is unnecessarily complex and difficult to understand.  The statutory provisions have not been consolidated since the Town and Country Planning Act 1990 and there has been piecemeal legislative development ever since.”  The Law Commission has gone on to develop reforms to the system in Wales, but nothing has been done to simplify, modernise and consolidate English planning law.  In 2017 the Law Commission argued that planning law in Wales was difficult and time-consuming to navigate, resulting in increased costs for individuals, businesses, and local planning authorities.  It would be difficult to argue that the same does not apply to England today.

The principle Act was passed thirty years ago and it is not surprising that there has been amending legislation over the years.  In fact, there were three other Planning Acts in 1990 – dealing with listed buildings and conservation areas, hazardous substances, and consequential provisions.  These were followed by the Planning and Compensation Act 1991.  Major changes to the development plans system were introduced by the Planning and Compulsory Purchase Act 2004 and neighbourhood planning was introduced by the Localism Act 2011.  In addition, we have had the Planning Act 2008 which dealt with infrastructure planning, the Planning and Energy Act 2008, the Housing and Planning Act 2016 and the Neighbourhood Planning Act 2017.  Significant legislative changes are likely to follow the forthcoming White Paper and it would seem only sensible to use this opportunity for a comprehensive exercise to simplify, modernise and consolidate the law rather than to merely tinker and amend it.  The Law Commission approach – drawing on evidence, professional expertise and practical experience as well as political objectives – would be beneficial.  It would actually help to go back to first principles and ask what sort of planning law is needed in the 21st century.

The legislative review should not stop at the principle Act.  The subordinate legislation is in desperate need of overhaul.  The General Permitted Development Order 2015 has already been amended seven times.  It is a complex document dealing with something that should be simple to understand.  Permitted development should, by definition, be development that causes no harm.  Instead, it has been used to test various policy initiatives that are quite capable of having serious environmental, social or health consequences – such as the conversion of office and other buildings to residential use or the short term use of industrial buildings for educational purposes.  Relaxations regarding the size of house extensions may have adversely affected the environment of some residential neighbourhoods.  The fact that it has been necessary to introduce a “prior approval” system for some things which are permitted development – surely an oxymoron – underlines the fact that the system is defective.  A simpler solution would be to have a policy encouraging such initiatives in the right place but with a strictly time-limited application process applying to every case to make sure no harm would be caused.  The Government’s current proposal to allow an extra two storeys on existing buildings as permitted development looks dangerous. 

Changes to the planning system in recent years have almost invariably been intended to simplify and speed things up.  In reality, they have often had the reverse effect.  The system does not need more tinkering or dabbling based on un-evidenced assumptions or prejudices.  It needs a comprehensive overhaul based on an analysis of what the system should achieve in the 21st century and on learning from what has been shown to work and what has been shown not to work.

Kim Penfold
May 2020