What Has the Planning Bill Done for Us?
Happy Newish Year!
We haven’t got around to blogging for a while. To be honest, we were in need of a break well before the holiday season. Working on the planning bill (and the review) has taken up a huge amount of PDs time and energy over the course of several years and we have started to suffer from a certain amount of Planning Bill fatigue. The first answer, then, to the question ‘What has the planning bill done for us?’ is that it has made us feel really rather tired.
However, post festive season we are now gearing up for the final stages of the process and wanted to send you an update on what’s been happening in the hope that, along with us, you can summon the energy to help with a final push for change to improve the public’s experience of planning, including of course, continuing to help us push for Equal Rights of Appeal.
So firstly, where have we got to?
The Bill has now completed its stage 2, which is the stage where the committee overseeing the process (Local Government and Communities Committee) scrutinise what’s been proposed and suggest amendments.
We are currently at stage 3, where the legislation is considered by Parliament as a whole. It is likely to be a protracted affair. We are reliably informed that this is the most amended Bill since devolution. Certainly with 345 amendments of which some 230 or more were passed, it has now become a rather weighty and complex tome, the direction of which is no longer clear. We are led to believe that several parliamentary sessions will be required to cover the much amended Bill.
So why has this proven such a controversial and heavily amended Bill? There are a number of possible explanations for this. The first might be that the original Bill was rather rubbish to start with. Throughout the review we’ve argued that the process has failed to enable meaningful debate. There has also been a lack of political leadership or vision. The fact that even the volume house-builders whose lobbying was widely seen to have prompted the reform in the first place have now raised concerns speaks, well, volumes.
The quantity and nature of most of the amendments demonstrate a vote of no confidence in our system of market-driven planning and particularly its failure to build enough, high quality housing in the right places. A plethora of amendments suggesting new targets, reporting mechanisms, exceptional land designations or consideration of the needs of particular vulnerable groups[i] suggests widespread concern. As Kenny Gibson one of the SNP MSPs on the committee said to the Minister during one of the sessions, “what should be happening is not happening” with regards to planning for housing needs. The response of MSPs has been to “take a belt-and-braces approach to ensure that older people and people with disabilities are considered” as their needs are currently not sufficiently met by the types of houses being constructed.
If the Government saw the Bill as a means of creating efficiencies and cutting costs for badly underfunded planning services, that aim has backfired spectacularly. There is no doubt this Bill now has significant resource implications. Some cost-cutting proposals, for example getting rid of strategic development planning, have also now been reversed at committee stage. If the current dogs dinner of a bill is passed, it will create a huge amount of work for planning officers just to understand the new world they’ll be working in and is likely to produce more of a tick box culture than enabling better planning. The case for well-resourced planning departments to achieve good standards of development remains to be made.
The bill is too broad ranging for us to cover everything that has happened here. Instead here are some highlights from a PD perspective.
There are some things worth celebrating about this amended Bill, even if they usually don’t go as far as we would like.
Importantly we have purpose
The introduction of a purpose for planning was one of Planning Democracy’s key asks and this has now been incorporated into the Bill. Why do we need a purpose you may ask well, will it make a difference? The bottom line is that it reasserts why we need planning, it shows us what planning is supposed to be aiming for. It might remind planners why they became planners, not to be technocrats issuing permissions and licenses on land as efficiently as possible, but to help create better places, aspiring to a better future. In the light of the original aim of the review that sought a narrower definition of planning this is a particularly important marker of success. We would still like to see public participation included in the definition, good planning should be inclusive and people centred. Good debate is crucial to delivering sustainable places in this complex world of competing interests, but it seems we are still some way from winning acceptance that good citizen involvement should be seen as a fundamental part of the purpose of planning.
What other successes have we had?
Repeat applications should get a mention. Planning is a war of attrition for some communities as developers not only have a right of appeal but can put in serial applications that like the Terminator never seem to go away. We have had some success in extending the period before a developer can put in a similar application from the current 2 years to 5 years. This gives communities an extra 3 years before they may see the same application again. However, the developer is still able to put in a second application for free. This technicality can cause confusion for communities who may think an application has been withdrawn, only for it to reappear again a while later. We were unsuccessful in getting rid of this ‘free go’.
Other amendments that we supported have been successful so far (anything has the potential to be reversed at stage 3) For example strategic development plans are set to stay as amendments reversed the Government’s decision to ditch them. The National Planning Framework will receive greater parliamentary scrutiny (now 120 days rather than 60) and will need to be signed off by Parliament. In addition Andy Wightman was successful in a tentative step towards Land Value Capture for the new Masterplan Consent Areas. The changes will enable local authorities to buy land for what it is worth based on its current use, rather than a value inflated by what it might be used for in future.
So, will the amended bill make a difference to the average person’s experience of planning?
That seems unlikely.
Despite the Government’s own research pointing to the failure of public engagement in planning, the initial Bill was distinctly underwhelming when it came to introducing more effective community engagement methods. Apart from Local Place Plans (about which we have some major reservations), there was nothing to encourage planners or developers to work collaboratively with the public or to listen to their views. In fact, anyone wanting to try and engage in the local development plan process following this legislation will find themselves having less opportunities than previously.
The Government has belatedly introduced a consultation process at the beginning of the development planning process (now referred to as the ‘evidence gathering stage’). The fact that they failed to notice this omission until stage 2 demonstrates just how little they value public involvement. These amendments only take us back to where we are now before the review proposed wiping away one of the key opportunities for early community engagement in the Local Development Plan by deleting the Main Issues Report (MIR).
The MIR has now been replaced by the ‘evidence gathering stage’, however, the Government’s amendment does little to suggest anything beyond the cursory consultation we already have. The one piece of good news is that the public will have 12 rather than 6 weeks to respond to the proposed Local Development Plan consultation but that might just mean people can devote more time to being ignored.
Much of the detail on consultation requirements are left to secondary legislation, but the wording does not give any reason to believe we will see significant changes of approach. Local authorities are required to ‘consult’ rather than involve and ‘to have regard to the views expressed’ does not sound like it will lead to the more effective early engagement the governments rhetoric has suggested. This is a massive missed opportunity, the Bill could have set the tone for a much more progressive form of inclusive planning.
So what changes are still needed?
As you all know, we have argued strongly throughout that one key mechanism for strengthening the public voice in planning would be to equalise appeal rights, granting communities new rights to challenge decisions that depart from an agreed development plan. We believe this could really drive change towards a plan-led system that really values the democratic voice of communities.
Many of you have worked with us to try and introduce Equal Rights of Appeal. It has taken a momentous effort and we shouldn’t underestimate what we achieved in bringing the issue to the forefront of the debates, despite the consistent denial of the right to even debate the issue. As many of you will know on the 7th November the vote for community right of appeal was lost, due to the SNP voting against and Conservative MSPs (Graham Simpson and Alexander Stewart) abstaining on the amendments put forward by the Green party and Labour, rather than supporting a limited right for communities to appeal planning decisions. Amendments to limit the developer‘s right of appeal to only applications that are in line with the development plan, were also voted down.
All is not lost, there is still plenty of opportunity to bring in appeals at stage 3. We will of course continue to work with politicians during this final part of the process. One key challenge is to overcome the fears around reforming appeals that have been loudly repeated by a worried development industry. It’s a shame that the Government and planning profession continue to repeat simplistic arguments against ERA and refuse to respond to the arguments we have put forward about appeals leading to a stronger, plan-led system. This is perhaps the biggest frustration of this flawed process for us.
Are there any other changes that might help get the public voice heard?
It is unlikely that any additional measures will make a fundamental difference now, not without real leadership from a Government that understands the value of public involvement and really seeks to drive the culture change we need.
So, not with this Government then.
However, filled with all the hopefulness of a new year here are some suggestions we will be making at stage 3. As ever, we would welcome any feedback on these or any other ideas you might have:
- Re-introduce a proper examination of the proposed plan with a right to be heard: Currently you only get the chance to make formal written comments on a draft plan. The planning authority modify the plan. However, the public don’t necessarily have any opportunity to comment on the modifications and whether those modifications address their concerns. There are risks that planning authorities may misinterpret representations and may incorrectly consider that a modification takes account of or resolves an issue. The amendment we propose would mean that a Reporter-led examination would be required to discuss how representations have been taken into account in revising the draft plan. Anyone who makes representations on the draft plan would have a right to be heard at the examination.
- Community Representation at the Gatecheck stage: The planning bill has introduced a new stage in the development planning process called the gatecheck stage. This is where a Reporter looks at whether the evidence gathered for the plan provides a basis for the development of the plan. In order to make the Government’s promise of ‘front-loading’ community engagement early in the process, we want to ensure the public are actively and meaningfully involved and given some status in this gatecheck process. At the moment we think the gatecheck should be overseen by a panel of stakeholders, including community members.
- Call for sites: This panel could also oversee the call for sites which is currently an informal part of the development plan process, ensuring that communities have a voice from the earliest stages of considering what sites should be brought forward for development. By increasing public awareness of development strategies and sites, this could also help to strengthen take up of the community right to buy.
Now that our Hogmanay hangover has cleared it’s back to a hard diet of planning bill for us. We absolutely need your support to bring about changes at the last stage of the Bill. As you will know the voice of the community needs to shout very loud to overcome the lobbying skills of the vested interests. Please join us in continuing to press for change. If you are willing to help please contact us at email@example.com
[i] For example amendments 52, 116a, 116 b, 116d, 188, 222, 223