1. Uncertainty Blights UK Planning System
  2. Developers Struggle to Mix Conflicting Uses
  3. Online Planning Portal Eases Confusion
  4. European Court 'Green' Rulings Cast Doubts on Development

Copyright: David Lawson - pubished in Property Week June 2006

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Uncertainty Blights UK Planning System

The ink is hardly dry on a new planning Act and the system is already set for yet more turmoil as Ruth Kelly takes over from John Prescott as the government’s head of planning.   Developers are used to change. Planning is a poison chalice to ambitious politicians and, before Prescott, they came and went with monotonous regularity for decades. But ministers rarely took enough interest to change direction.

  It is uncertainty that cause most distress. For all the fireworks over the proposed development tax and incomprehensible extra layers of local plans, developers would have stepped back, juggled a few figures and carried on as before. Now they are not sure what is happening.  Kelly has been told to draw up new reforms within the next few weeks. That may be a welcome response to screams over the proposed new tax, as she is more in tune with the property world. But it may not, so we are back in limbo.

  Yet uncertainty was creeping back before the disastrous local elections, missing deportees and sex scandal sparked a desperate bout of Cabinet musical chairs. Kate Barker has moved on from her appraisal of housebuilding and is rummaging around the planning system to suggest ways of matching the seemingly contradictory demands of sustainability, productivity and economic development. At first sight a brief to ‘find ways of increasing the flexibility, transparency and predictability that enterprise requires’ seems just what the doctor ordered. But the RICS was quick to condemn yet another piece of tinkering.

 ‘A further review of the planning system is misconceived ……as it follows so soon after the Barker review of housing and the fundamental review of the planning system enshrined in the Planning and Compulsory Purchase Act 2004,’ says a biting response accompanying evidence to the review. ‘The focus should remain on how the current system can be made to work, rather than starting from first principles once again.’ 

   Priorities should be far more mundane, such as making sure there are enough experienced planners to deal with applications. It is a standing joke that enquiries are commonly answered by a twenty-something who trained in New Zealand or consultant from the other side of the country.  ‘This shortfall cannot be made up simply by hiring consultants who lack the requisite local knowledge and, in some cases, the necessary experience,’ says the RICS.

  Few local authorities have the valuation or economic expertise to deal with complex matters – which will become even more acute if a land tax emerges. And this is no better among planning inspectors, who will be crucial to sorting a morass of cases in this fog of uncertainty.  Even at the very top ministers suffer from lack of skilled advice which could focus   decisions based on long-term strategy, because professionals within government are routinely moved around every five years. 

   Sustainability fares no better. A thread running through last month’s British Council for Offices annual conference was the frustration among developers offering a new approach but facing a dearth of expertise among planners.   This, along with new financial targets, is making the system worse rather than better. Applications are held up until experts can be found. Councils can’t afford to ruin performance figures, which determine how much they get in grants, so they often reject plans, encouraging resubmission.

  ‘It is now almost the norm for two or three months to be wasted on the first application and even then there is no guarantee that an amended application will be decided within the appropriate time scale,’ says RICS. Other sources of delay include interminable negotiations with regulatory bodies like the Environment and Highways Agencies. Just getting them involved earlier in planning discussions would speed matters.

  But moves seem to be underway on at least one key area where the RICS wants fundamental change – returning planning to its roots. Like Kate Barker, Sir Michael Lyons has moved on from investigating a relatively narrow problem for the government – how to disperse civil servants to the provinces – to propose a new philosophy of moving power away from London to local authorities.  His latest findings are more like musings than hard recommendations, and might be expected to carry little weight in government circles – particularly among Whitehall manadarins reluctant to let go of controls. So it was interesting that when Vicki Pryce, director general of economics at the Department for Trade and Industry, was asked to show how the UK could emulate Ireland’s economic growth at the BCO annual conference, she went into great detail about the role of regional planning.

  Her department appears to be doing a lot of work behind the scenes on ways to raise the economic performance of cities to European standards. At its heart is the idea of a strong regional structure working closely with local planners on issues such as employment, shopping and housing.  This meshes with RICS suggestions for planning based on city regions rather than old administrative boundaries.  It also wants Barker to look at real world successes like Stockley Park and the technology clusters around Oxford and Cambridge rather than old fashioned ideas of land planning.   But at the end of the day, most developers would settle merely for some certainty about which way planning will go, and that seems a long way off.

Developers Struggle to Mix Conflicting Uses

Revolution is a much overused term, yet there is no other to describe the changes sweeping through planning. But this has little to do with the obvious candidates. Development taxes have been tried before. So has swapping powers between London, the regions and local councils.  The real change is a reversal of almost everything considered as progress for the last 100 years. Modern planning was founded on the principal of separating work, rest and play. Now planners and developers are struggling to melt everything back into one.

   Mixed use is meant to solve many problems anticipated in the 21st century. Homes near offices mean less traffic congestion and CO2 emissions. Mixing in leisure revives dead town centres.  It all seems so simple. But that is only where you have a blank sheet on which to draw – and a big one at that.  Huge schemes backed by major developers have the resources and space to work this new magic. It requires deep pockets and years of negotiation to create a Stratford City or reshape the vast acres of King’s Cross in London.

  Even a modest parade of shops or housing infill can be burdened by demands for other uses. Few developers have the skills to mix and match so consultants are in huge demand. Planners themselves are stretched by ambitious local authority masters, leaving the curious situation where developments are often shaped by advisers brought in by both sides.  The underlying idea has few critics. That is understandable, as we are merely returning to the natural order of towns, according to Keith Priest, an architect behind major landmarks like Stratford and the Olympics site.

  The modern city is a historic aberration, he says. Planning was created to separate homes from belching factories and satanic mills but people now work in clean offices. Mixed use is merely a return to a thousand years of living above workshops, shopping in nearby markets and relaxing in local taverns. Try telling that to Richard Cable, director of Capital & Counties, who is struggling with the logistics of putting floors of apartments above Cardiff’s St David’s retail centre extension. Expensive and complex issues emerge such as residential access taking up valuable retail space - a problem shared when converting storage space over ordinary shops.

    This kind of mix of uses within buildings is often not viable on smaller schemes where the cost cannot be spread, he told a seminar at the annual British Council for Offices conference in Dublin.Yet smaller developers have to try, as planners are becoming more enthusiastic about getting homes they can no longer build on green land.  This can work out for up-market flats as city-centre living becomes attractive to young professionals but most planners now demand social housing, which can wipe out economic viability.

   Mike Hussey, London MD for Land Securities, says high land values means homes must be located off-site to make figures stack up. But when demands become too ambitious – such as Mayor Ken Livingstone’s insistence on 50% affordable housing – even that can prove impossible.   If other cities follow this lead, they could cripple commercial regeneration and cut supply of the very cheap homes they are trying to promote. This particularly applies to the broad swathe of developers who do not have the resources to find alternative housing land.

   Even mixing commercial uses raises problems. No retailer wants to be next to an office foyer, nor does an office occupier like their front door between a row of shops.  Developers have come up with some clever solutions, however.  LandSec created an office ‘street’ at first floor level at Cardinal Place, the dramatic glazed complex near London’s Victoria Station, leaving uninterrupted prime shopping below. Again, smaller developments may not have such flexibility.  Planners should take responsibility for integrating such ideas into regeneration of high streets and suburban centres.  There are plenty of consultants around ready to show them how.

The future of planning lies in the past. Keith Priest, involved in regeneration of vast swathes of east London, sees a return to the mix of uses before Victorian factories drove people out to suburbs.   Eric Kuhn, world famous  thinker behind schemes such as the 1.2m sq ft Sydney Waterfront and 20m sq ft Dubai Financial Centre, looks back even further for development much closer to home.  He asked locals to list favourite old towns and reproduced them in seven villages to form the new town being developed by Land Securities for 25,000 people next to Kuhn’s iconic Bluewater shopping centre. Successful communities are meeting places, he says. Schools and health facilities must be in the centre rather than relegated to cheaper fringes. People can drop off kids, shop, visit a clinic or have a meal. Planning is not about buildings but enabling people to interact, he says.

   Online Planning Portal Eases Confusion

A milestone on the torturous journey to a fast and efficient planning system drifted past almost un-noticed a few weeks ago.  The last in a long list of local plans became accessible online.  It might seem justifiable for a mere bureaucratic marker to be hidden by a dense undergrowth of headlines about development taxes and housebuilding targets,  yet big political rows play little part in the everyday task of  laying real bricks and mortar.

  Confusion is the real villain. Local authorities operate under a brain-numbing variety of local plans, made all the more bewildering by a new set of strategies and guidelines introduced by the latest reforms. It takes skill and enormous patience to track down what is relevant to hundreds of councils across the country.   The internet made that easier but still meant digging into each individual web site. Keeping up to date was even harder, with a continuous torrent of tweaks and policy shifts, let alone appeal and court decisions. It is a standing joke that you can always tell a planning consultant’s offices by the endless box files lining corridors. Now a central gateway to every scrap of that information is nearing completion.

  But it is more than a fount of knowledge. The Planning Portal has ambitious plans to provide a central point of contact for just about anything to do with development.   Do you need planning permission? Consult the online oracle. It offers advice on anything from a house extension to a business park.   How do you go about getting permission? Another function walks through the whole process, linking to maps, plans, regulations and even an appeals service.  Want to know who else is developing and how they got on? Every application and decision is now listed as part of the National Planning Register.  Want to make an application?   Work through the online forms and press a key.  Want a job, or digest of planning news? Consult the online oracle.

  Professionals know about the service and are using it every day, says Chris Kendall, director of the Planning Portal. Yet the message has still to seep out to the mass of the property industry not directly involved in day-to-day planning, and a national road show is being organised to spread the word.   For instance, an investor looking at something half way across the country can now call up the current stance of a local authority in its new development plans.  Routine requests for extensions and alterations can be fed through online.

  Kendall says a prime function of the service was to semi-automate vast numbers of small applications to ease the administrative burden on local officers.  Undermanning is a key problem in planning, with accusations that developments are rejected rather than miss time targets set for councils to qualify for grants. Easing the flow of routine applications enables officers to spend more time on bigger and more contentious ones.  It also cuts costs.  Some applications can require more than 10 copies involving hundreds of pages. The postage and copying alone can run to more than £120. Online submission eliminates all the paper and halves the preparation time, says Kendall.

   He is looking forward to even bigger savings through the introduction of a standard planning application form. The current process is arduous and confusing, with 387 planning authorities in England and Wales each using its own method for processing applications.  A standard form will use a series of questions to determine the kind of application required and provide a seamless submission process, again cutting time and costs.

   Major projects are still rarely handled via the portal but Kendall is not worried, as an early priority was to ease the burden of routine applications. This is beginning to happen, with close to 3,000 a month now flowing through the portal. Big commercial groups are taking the plunge, however. Anglia applies for all its home improvement projects online – estimated at up to 300 a month. An application to build 200 homes in Milton Keynes also recently went through online, showing that the message is getting through to bigger clients.  Kendall admits that negotiations rather than form-filling takes up most time on large schemes but points out that soaring use of the site for research into local plans shows its value even for the biggest users.  It is also capable of storing endless paperwork and complex drawings, so he foresees a time when a lot more space is freed up in all those consultants’ corridors.


April 2003

April 2006

European Court 'Green' Rulings Cast Doubts on Development

Winning planning permission can be a tough slog. It often demands the delicate skills of a hostage negotiator, the brute strength of a nightclub bouncer and the bulging purse of an oil sheikh. But at least when the table thumping and back-room dealing is over, you can be sure that every potential pitfall has been avoided and development is assured.

   There have always been last-ditch trips to the high court. Planning is a perpetual three-cornered battle, with pressure groups and members of the public ready to undermine unpopular decisions by elected representatives. But setbacks are rare when backed by approved local plans. Not any more. The new dimension of green issues plus an extra level of decision making in Brussels has begun to chip away that certainty. Two key decisions by the European Court are girding lawyers and consultants for re-runs of battles they thought were won.

  One ruling demands that development plans must take into account the impact on Special Protection Areas – all-encompassing zones covering a range of environmental issues. That might not seem a problem to developers already used to working around rare plants and greater crested newts.  But schemes up to 5km from one zone in the south-east have been drawn into a battle which could cripple trumpeted government plans to expand housing over the next decade.  The Thames Basin Heaths SPA, covering 11 local authorities across Berkshire, Hampshire and Surrey, aims to protect wildlife not just through a 400m development-free zone around the boundaries but extra open space among more distant housing to relive pressure from visitors.

  This is being used by local planners to freeze or reduce housing, says planning consultant Barton Willmore.   Hart District Council has, for example, proposed halving housing density to 200 dwellings per acre compared with the adopted structure plan.  The consultant also questions the way scientific evidence is being skewed against development. A range of mitigating measures were proposed for Queen Elizabeth Barracks, which is allocated for homes within the adopted local plan but within 5km of the SPA. These measures have been accepted by English Nature and the RSPB but not by planners.

  BW points out that there are around 2,000 SPAs around the country and developers, land owners and professionals must get involved in debates over treatment under new local plans before it is too late. Appeals are already failing through lack of information on the ‘appropriate assessment’ of environmental impact on these zones demanded by the European Court.  A further challenge emerged from Brussels last month which could undermine permissions developers thought were sealed. The court decided the government has failed to implement European environmental directives correctly, says Sarah Hawkins, an associate at White Young Green Planning.

   This centres on when an environmental impact assessment should be carried out. An objector to plans for a leisure complex at Crystal Palace took Bromley Council to the European Court, insisting that an EIA was necessary. The council had argued the commonly held belief that this should have been done at the outline planning stage. It had no powers to demand one from the developer when detailed consent was sought – generally called ‘reserved matters’. The judges disagreed, which could have significant repercussions for the development industry and regeneration by adding further uncertainty and possible delays, says Hawkins.  

   The government is likely to change the law to conform but in the meantime objectors could force re-examination of old planning permissions. Considering that the Crystal Palace one dates back nine years, it could open a huge loophole.   Duncan Field, planning partner at lawyer SJ Berwin, says developers should take a long, hard look at any outline planning permission they are implementing or about to implement to satisfy whether an EIA should have been undertaken, even if  they were advised against this at the outline stage.

  When schemes get to the reserved matters stage, the least a developer should do is ask the local planning authority for a further opinion but in cases of doubt - and subject to other commercial considerations - they should be prepared to undertake an  EIA for the whole project, not just the part coming forward with reserved matters.   Uncertainty will be exacerbated by the threat that some schemes may fail because detailed applications reveal environmental issues that were not apparent at the outline stage. This could happen years after planning was agreed in principle.

   Environmental standards are also much tougher nowadays. Objectors, or even planners themselves, may challenge schemes backed by an EIA at an early stage, claiming the findings are no longer strict enough. Ironically, conditions imposed by planners themselves such as Section 106 agreements for roads, which are not introduced until consideration of reserved matters, could introduce negative factors into an EIA that undermine applications or give grounds for appeal.  Developers will certainly have to take extra care even at outline stage to include as much detail as possible to plug potential gaps and it may become standard practice to factor in the cost and delay of an EIA even where schemes appear to impose little threat.