The Government White Paper Consultation: More branch than root?
Happy New Year to you all!
It is a common complaint that applications and consultations often occur over Christmas holidays. Well the Government have managed to postpone the White Paper till now, for which we are all grateful (although I was on holiday in sunny Tenerife when it came out, I do wish they would check my diary first). However, there is a long consultation period until 4th April, so perhaps we have time to develop our thinking on some elements of the paper. Meanwhile here are some initial thoughts from Andy Inch.
On the 10th of January the Scottish Government published ‘Places, People and Planning: a consultation on the future of the Scottish Planning System’.
As regular readers of this blog will be aware, this is the latest step in a process that began with the First Minister promising a ‘root and branch’ review of the planning system in September, 2015. An ‘independent panel’ was appointed to make recommendations in October, 2015 and reported in May, 2016. The government issued an initial response to the review in July of last year and further research and consultation has been ongoing since. Now we have a ‘consultation’ on 20 proposals for reform, doubling as what used to be called a ‘White Paper’ it will inform concrete proposals for new legislation and changes to policy.
The consultation will run to April 4th and we would encourage anyone with an interest to read it and consider responding. To help with this the Government have prepared a set of questions at the end of each of four sections that outline ‘key areas of change’, provided that is you can get over any recurring nightmares of sitting your Highers (“Do you agree that our proposed package of reforms will increase community involvement in planning? Please explain your answer” took me right back to recurring nightmares set in a draughty exam hall).
We will be preparing a more considered PD view on the proposals over the coming weeks and will share it here. In the meantime, here are a few study notes we hope might help with your revision.
More branch than root? Looking for the underlying assumptions
It’s actually a shame that government policy documents don’t feature as set texts in the English curriculum since they are a strange literary genre. The world that they conjure is frequently a magical place in which it is possible to address everyone’s concerns and create a wonderful future, free of conflict:
Planning should be central to the delivery of great places and a force for positive change. Scotland’s economy needs a planning system which is open for business, innovative and internationally respected. Our people need a planning system that helps to improve their lives by making better places and supporting the delivery of good quality homes.
We recognise the unique contribution that the planning system can make to shaping the future of our places.
Scotland needs a planning system which helps growth to happen and unlocks the potential of our people and places. (p3)
The real test of what’s happening therefore lies in the concrete proposals through which these general aspirations are to be realised. However, it’s perhaps worth making three overarching points about the assumptions that seem to underlie the review:
- Remembering that most of the planning community in Scotland was taken by surprise when the review was announced, we have been working throughout under the impression that its primary driver was lobbying from a dissatisfied house-building industry. This basically reproduces a by now very familiar set of complaints about the planning system: that it is a drag on growth, deters investment, and prevents the market from efficiently meeting housing and many other needs. It matters little that the evidence to support this view is flimsier than an internal wall in the average new build house, it remains politically very powerful and runs unquestioned through the consultation like so much faulty wiring.
- By contrast, whilst it is welcome that the needs of communities are recognized throughout, the role of public participation is treated much more cautiously and with a depressing presumption that people are likely to get in the way of necessary development.
- Overall, it’s not really clear that there are m/any transformative, ‘game changing’ or ‘root and branch’ shaking proposals here– instead there is a mixture of proposals that attempt to shore up accepted principles (e.g. of a plan-led system, and ad nauseum, the need for efficiency) and some newer sounding but largely second-hand ideas (on local place plans and infrastructure funding). Many of the measures identified respond to long established concerns and have featured frequently in attempts to reform the planning system over the last fifty years and more. The worry is that by failing to acknowledge and address the root causes of these concerns, we are likely to see little of fundamental importance change.
To show what I mean, I’ll look at some of the proposals from each of the four ‘key areas’ covered by the consultation.
- Making plans for the Future
The first section of the document starts with a great statement about the role plans should play:
Development plans should provide a clear vision of how a place can grow and flourish. They should be of interest to everyone and inspire the confidence of communities and investors alike. Change is needed to make that happen and ensure plans better meet the needs and expectations of society now and in the future
Hard to argue with that. To make it happen the Government proposes:
- Some encouraging sounding but really fairly vague noises about a statutory duty to better integrate land-use planning with community planning
- The abolition of strategic development plans after less than ten years and their replacement with some kind of duty for local authorities to cooperate over regional issues guided by a much stronger role for central government policy and the NPF – it’s hard to see how this removal of strategic capacity from the system will help to improve planning. It seems most likely to lead to further centralisation and the stretching of already taught local authority resources and capacity.
- A streamlining of existing local development plan processes, plans themselves and supplementary guidance. Paradoxically, the Government claims that streamlined plans can also be stronger in steering development.
- Part of this includes the removal of ‘main issues reports’, to be replaced with a draft plan to make it easier for more people to engage – though that seems a bit fanciful in the absence of a much wider set of changes to how planners approach plan-making and are resourced to engage the public.
- There is a potentially interesting proposal to create citizen panels to participate in early ‘gate checking’ examination of plans – this is a principle that could be usefully extended to the make up of local review bodies that hear appeals
- A move towards increased use of zones that effectively offer planning permission in principle for certain forms of development (principally housing)
The last of these is a tentative step towards acknowledging that the main issue in creating a genuinely plan-led system lies in opening up real debate about the relationship between plans and planning decisions. In Scotland this is weak since decisions can be made based on ‘other material considerations’, a term that was originally devised to allow local authorities to take account of emerging but not yet adopted plans. Over time, predominantly developer-led legal challenges have ensured a very wide definition of what counts as a material consideration. As a result, contrary to genuinely plan-led systems where the plan effectively grants a planning permission, there is considerable discretion available in development management. This creates flexibility but also uncertainty for both developers and perhaps particularly communities. It also means that despite similar goals for an effective ‘plan-led system’ being a part of nearly every attempt to reform the system over the last fifty years, this aspiration has never been realised.
This takes us to the heart of a further important point. Though some reshaping of plans is surely practical and a good idea, the legal complexity of regulating land-use change means that any attempt to significantly streamline plans is likely to create increased ambiguity that will add complexity at the development management stage. Conversely, any attempt to make plans more powerful, so that they effectively zone certain kinds of development, will increase the complexity of producing plans – or risk opening them up to legal challenges. There’s little acknowledgement of this tension in the consultation, and as a result little to suggest the suggested changes will radically enough transform the underlying legal basis on which development decisions are currently made.
I’ll come back to a related point about the power to actually deliver plans through proactive powers of land assembly below as it overlaps substantially with ideas about infrastructure funding and what PD believe would be required to realise a genuinely plan-led system in Scotland.
- Getting More People Involved in Planning.
Perhaps most relevant to PD is the second section on Getting More People Involved in Planning. It’s a positive that this is recognized as one of four key priority areas, following on from the review panel’s equally welcome recognition that engagement remains a serious problem in the Scottish planning system.
This section starts out by recommitting to the goal of ‘front-loading’ or early engagement. This is unsurprising since the Government have consistently promoted the idea. It’s also a decent principle but the debate about it is infuriatingly evidence-free: this is another example of a change that has been consistently promised for nearly fifty years but never actually delivered, and yet there is no attempt to question what might be learned from all of that experience or what might need to change to make it a realistic goal.
The most broadly positive suggestion is to develop a system of local place-plans capable of being afforded statutory weight as part of the development plan. This mirrors provisions for ‘neighbourhood planning’ in England and could, as the consultation suggests, provide a proactive way of engaging people in the development of their local area, in keeping with the wider community empowerment agenda.
The details of any such scheme will matter a great deal. In England more legal boiler-plating (there’s another theme emerging there) has produced a long, slow and expensive system that is inaccessible to many communities who do not have the requisite levels of social, cultural and financial capital to last the course. This needs somehow to be avoided. Likewise, it’s hard to avoid the feeling that local place plans would be better as a single expression of a community’s aspirations, rather than land-use plans duplicating existing and emerging processes in relation to community planning, community land rights etc.
Throughout, there is a distinct and disappointing note of skepticism about the role that community’s play in the planning system. This is evident when the consultation talks of avoiding ‘unreasonable protectionism’, and only welcoming the engagement of those who back development and growth. This smacks of a willingness to get people involved provided they agree to pre-approved answers: a strangely bowdlerized version of public participation and democracy.
Another potentially promising commitment, to community capacity building and innovation in engagement techniques, does little more than reiterate existing government support for the charrette programme. Charrettes are not necessarily a bad thing. They are, however, expensive, principally expert-led and were developed to find design solutions (less ‘do we need a power station?’ and more ‘would it be better if we used a different render on the façade of the power station?’). There is a real danger that continued commitment to charrettes is blocking wider experimentation with alternative deliberative and participatory techniques that could be both more effective and better value for money.
The third proposal in this section is entitled ‘getting more people involved in planning’ which would obviously be a great thing. Oddly the consultation tells us we need to wait for the results of recently commissioned research into barriers to engagement before saying too much- if this research and the issue itself are important why didn’t the consultation wait until it was complete? Beyond that there is a strong and slightly peculiar focus on how to engage children better in the planning process. We have nothing against this aspiration, but it seems like a potentially nice extra rather than a core issue and does nothing at all to address the huge inequality of arms that exists between concerned citizens and the highly-professionalised planning and development processes. It also distracts from the massive challenges involved in empowering people to understand and engage effectively with how plans and decisions affect their lives. Sadly such issues are barely even acknowledged, let alone seriously addressed.
Suggestions for increasing public trust in the system offer some welcome acknowledgement of the problems communities face when trying to engage in plans, including when faced by repeat applications or failures of enforcement. These are both issues PD raised during the review. Having said that, the proposed solutions don’t suggest any desire to radically improve accountability to the public or the accessibility of planning processes. Moreover, the consultation goes on in the next recommendation to reject the introduction of an equal right of appeal – the key mechanism PD and others have campaigned to see introduced.
This was not unexpected. The Government already took the extraordinary step of listing a commitment to not introduce ERA as one of the ten key ‘actions’ promised in their initial response to the panel’s report last July.
Familiar and entirely unevidenced arguments are trotted out to support this position: ERA will undermine frontloading and the role of locally elected decision-makers; lead to delay and scare off investment; centralize decision-making. We have consistently presented evidence and arguments that illustrate why these claims are without foundation. We won’t repeat them here, you can read them for yourself if you haven’t already done so. Interestingly, the consultation goes on to immediately propose a means of dealing with its own objection about centralisation of decision-making by proposing to extend the use of Local Review Bodies (though it stops short of considering how community representatives might be incorporated into such bodies, or even into nationally heard appeals).
Ultimately what all of this serves to reveal is an underlying view that people get in the way of planning decision-making and the workings of the development sector and should not be given equal rights to participate (meaning PD’s work is not yet done and our volunteer staff aren’t going to be able to take early retirement any time soon).
- Building More Homes and Delivering Infrastructure
That the primary purpose of the planning system in Scotland at present is the promotion of development rather than the realization of a democratically determined public interest is perhaps most apparent in this section of the consultation. And it is arguably the heart of the governments’ response to the concerns that motivated the review in the first place.
The case for new housing is presented as a need to ‘adapt to new market circumstances’ and to accept ‘objective assessments’ of housing need. This is to be determined and targets established nationally, albeit with some collaboration about local circumstances. All of this presents planning as a market-led and fairly technical activity, best left to the experts. We’re sure that will suit the development industry nicely, the problem is it’s just not true. Planning decisions are political, and as a society we need to find ways of developing debate and understanding about issues like housing and how it can be planned to improve the quality of places.
There is a welcome recognition here that planners should be proactively involved in ensuring that housing is ‘delivered’ as part of a wider place-making agenda rather than in purely reactive mode. However, despite proposing the development of simplified housing zones, the government stops well short of proposing any radical solution to how this might actually be done. In particular, there is no commitment to take on the fundamental issues of land assembly, compulsory purchase and public funding of infrastructure, and how these could be paid for from the uplift in land values that the grant of planning permission brings. Instead there is a much more moderate call to introduce a new infrastructure levy (again perhaps drawing on experiences of the Community Infrastructure Levy down south). This may prove a more transparent and accountable mechanism than existing section 75 agreements but it is doubtful that it will enable a serious change in practices or exploration of how to resource parallel objectives for land reform and community ownership.
This is a missed opportunity that reveals the reality that the development sector is too strongly involved in writing the rules by which they are regulated, to the detriment of a more positive vision of planning. Rather than accepting that the market shapes the forms of regulation we can afford, we could and should be arguing for planning powers as a means of shaping market behavior – after all there is relatively little to no free-market competition in a housebuilding sector dominated by a few large firms with equally large landbanks, the ‘market’ for whose product is guaranteed with their connivance by central government targets. And it’s not as though anyone is overly impressed with the quality of housing that they’re producing either.
- Stronger Leadership and Smarter Resourcing
The final section deals with how planning services can be resourced, skilled and led to ensure that the aspirations for reform can be realised. Despite the limited ambition of the proposals, this is no small challenge since planning departments in Scotland have been subject to big budget cuts and are already badly stretched. PD believes that more resources are urgently needed.
The main proposal here is to consider increases in the fees paid by applicants for planning permission. This seems sensible as fee levels in Scotland are currently considerably below those charged in other parts of the United Kingdom. However, it is also vital that planning continues to be understood as a public service. There is a worrying sub-text here that applicants will have the right to demand a better service in exchange for a higher fee. All clients of the planning system deserve a better service: this means applicants but also communities, other service providers and agencies, future generations and the places we are planning. It is particularly important that skills and resources are earmarked for improving engagement activities which at the moment too often unimaginative and ineffective. As this consultation shows, the result of such low-budget, low-ambition engagement is then used as an argument against extending democratic involvement in planning. This is a vicious cycle that needs to be challenged. One way of doing so might be to develop meaningful measures of the actual impact of public engagement on planning decisions and the development of places – at present this is rarely considered an important measure of performance. Unfortunately that is not suggested here.
We hope that’s provided some initial analysis and response to the consultation. There are some promising ideas in the consultation (some of which like encouraging experimentation with self-build and other housing types we didn’t have space to mention here). Overall, however, this looks a lot like an agenda for tinkering with what we’ve already got, based on a continuing scepticism about the role and value of proactive planning, and people’s rights to be involved in decisions about the use and development of land.
As a result, it’s hard to avoid the feeling that many of the answers to the consultation questions are already known and that your responses will be graded accordingly. We can only hope that’s not the case.