A blog about planning, planning law and planning policy

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The information on this blog is not intended to be advice, legal or otherwise. You should not rely on it and I do not accept liability in connection with it. If you do have a planning law question on which you would like advice, seek legal advice from a suitably qualified solicitor. Specific advice should be sought for specific problems.

The Red Tape Challenge tackles planning

RedTapeGood news I feel with yesterday’s announcement that the Government’s Red Tape challenge is now to look at planning.  Planning minister Nick Boles said “Unnecessary technical regulations that are no longer needed will be removed”.  That sounds like a clear pledge.

This follows the welcome simplification of design and access statements and the reduction in validation hurdles announced before Christmas (on which I commented here).  There is a relatively short time to respond however – five weeks (presumably from the announcement yesterday) – so get your response in before 7th March.

The announcement says the review “will feed into the department’s wider work to help deliver a more streamlined, effective and accessible planning system, while maintaining necessary safeguards”.  Roger Hepher of Savills, one of the Sector champions says in the announcement “Although we’ve lost a certain amount of red tape since 2010, there’s still plenty around. This government is giving all those interested in the planning system an unprecedented opportunity to clear the decks of unnecessary rules and regulations that remain, and to address the bits previous initiatives have missed.“

This is an important opportunity therefore and one on which the Government can be held to account. So what are the unnecessary technical regulations?  What are the “unnecessary rules and regulations that remain” and “the bits previous initiatives have missed”?

First on my list are the unnecessarily restrictive provisions of section 106.  There is no need to stop planning authorities from agreeing that a section 106 agreement is not to be enforced against some successors in title. There is no need for it to state that an obligation to make a payment can only be to a planning authority – what about parish councils for example?  Or an NHS Trust?  There is no need for it to be so tightly drafted that a planning obligation cannot easily require a compliance with a travel plan (how does an obligation to offer season ticket loans fall within s.106?).  There are other problems with s.106 and s.106A but there is not enough space in this blogpost. You can read about some of them in, for example, “Planning obligations – ideas for reform” which I wrote eleven years ago – [2002] JPL 12.  I have posted about the Welsh approach here .  And the Law Society has made many representations to Government about it, the most recent of which was in its briefing on the Growth and Infrastructure Bill, currently in Parliament.

Second is the complexity of the LDF system.  It is simply overburdened with stages and the law which implements it is labyrinthine.  It is possible to have a simpler system. I believe that the LDF system was conceived to be capable of rapid change.  It is a portfolio of DPDs, any one of which is meant to be able to be changed to meet changes of circumstance. But in practice, the system appears to be more ossified than its predecessor.

Third on my list is Regulation 123 of the CIL Regulations. This will, from 6th April 2014 at the latest effectively limit the number of planning obligations which can contribute to a type or piece of infrastructure where there are already five or more.  The aim of this is to encourage or force planning authorities to move to CIL.  But why?  That’s not localism.  Some local authorities may have good reason for sticking with s.106.

My fourth issue is not about regulations, but about attitude.  The points I make about s.106 have been made for over a decade.  No-one has ever said they are bad points. They address issues which delay the drafting of s.106 agreements and make the process more expensive than it need be.  If taken up, unenforceable provisions in s.106s would be avoided (there is at least one disappointed parish council out there not receiving a payment of money, and litigation has struck down s.106 obligations to transfer land – the local authority was the loser).  But the consistent response from Government since CIL was conceived has been that ministers would not want to signal that they want to make s.106 broader, they want authorities to use CIL.  But this ignores the fact that s.106 is envisaged as being used for site specific issues, alongside CIL.

There is another aspect to this and that is the approach to consultation.  Government consults widely, but it is not actually taking much notice of the responses.  The best example I have of this is on CIL which I blogged about here.  I am closer to the school of thought which says that governments are elected to govern. If they make a hash of it, that will be reflected at the next election.  So they should decide what they want to do, taking advice from their civil service, and then do it, without asking for free advice from everybody. But if they do decide to ask for that free advice, then they ought to read it and act accordingly.  At the moment, I am far from convinced that there is much to be gained by responding to government consultations.  But nonetheless I would encourage people to respond on this one – this is a link to the consultation response page.

6 comments to The Red Tape Challenge tackles planning

  • Time to remove politics from the planning process.

  • Eva Land

    I have no record of the comment I made on the 1st February or the second attempt a few days later but some views expressed have been allowed as replies and agrrement with other posts.

    I did make a more detailed comment on the dissolving of the Standards Board for England a year ago as I feel this has weakened the planning officers position enormously with regard to being bullied and pressured by councillors.

    In many ways this Red Tape Challenge forum should and is revealing that inappropriately removing some Red Tape can be a false economy. Protecting the professionals who are employed to interpret and apply policy from interference and manipulation by elected members would speed up and result in far better, safer and hopefully unbiased decisions.
    Leaving the Monitoring Officer to decide what is in the public interest regarding a Code Of Conduct complaint is ridiculous as he/she will obviously do whatever is in the council’s interest.

  • Eva Land

    I am concerned that having attempted to comment on the Red Tape Challenge I found my posts were either not posted or removed. On asking the Red Tape Challenge Team by email why, I was told that could not see any reason for my posts not to be published but that a separate company was employed to deal with moderating the site.
    They suggested I resend my comments.
    I have found replying to other posts more successful but wonder how many posts are just not ever seeing the light of day!

  • Since ‘devolution’ I am increasingly confused as to whether rules and regs made at UK Government level directly affect us in Wales, I’m not alone. Is it worthwhile for us Welsh to be submitting responses?

    A report commissioned by the Welsh Government found no instances of best practice in the use of S106 in Wales, not very encouraging!

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