With a new consultation on housing coming up this autumn the Government have launched a draft vision for housing. In this they say “we want Housing to 2040 to be a lasting legacy that is not just about new homes, but that takes into account the people, place, environment and communities in which our homes, both new and old, are located”. We are already getting a distinct feeling of deja vu. Will this be another opportunity to resolve our housing problems in a truly sustainable equitable manner or will it be like the planning bill, where its ‘big’ business as usual.
Dr Andy Inch spoke at our conference in May and much of what he said about planning is as relevant to this consultation on housing.
Take it away Andy!
Just about everyone talks of their desire for a ‘plan-led system’ in Scotland. To the uninitiated this must be perplexing. It’s surely self-evident that a planning system needs plans. Plans should set out reasoned aspirations for what might be possible and desirable in the future. They should promise to make things better for people and places and set out how they’re going to keep their promises. Otherwise there’s not much point going to all the bother. In Scotland, however, plans are largely indicative. They set out aspirations but there’s no certainty any of it will ever happen. There several reasons for this.
One of them is rooted in the idiosyncratic development of planning law in the UK where decisions on applications to develop or change the use of land aren’t only based on what’s in a plan but also ‘other material considerations’.
This esoteric term seems to have been included in the 1947 Town and Country Planning Act to allow planning authorities to take account of forthcoming changes to their plans. Over time, however, it has taken on a much broader meaning. The courts have played an important role in this, allowing that anything related to the use and development of land is capable of being a material consideration.
Material considerations give UK planning systems their distinctive discretionary character, creating a gap between the plan and subsequent decisions where planners and elected members have considerable latitude to ‘weigh up’ the issues on a case-by-case basis.
This historical accident has some real strengths. It creates valuable flexibility, allowing decision-makers to take account of changing circumstances and emergent opportunities. Given the impossibility of knowing the future all planning systems need a degree of flexibility.
It also has some more problematic consequences, however. Most obviously, it means that plans do not necessarily guide subsequent decisions. This is quite unlike the ‘zoning’ systems that prevail across much of the world where designations in plans are, in principle, legally binding.
It also makes decisions opaque. In the absence of a clear definition, working out what is and isn’t a material consideration and how they are used to make (or justify) decisions leaves ordinary folk scratching their heads in dismay or muttering darkly about corruption. So reliance on material considerations reinforces the power of experts and those who can pay for them.
A final important consequence is that it means our planning system is effectively ‘end-loaded’ because binding decisions are not made in plans but on a case-by-case assessment of individual development proposals.
Other than some rather limited discussion about more clearly defining material considerations, it is notable that this fundamental feature of how our planning system operates has not been much debated during what was billed as a ‘root and branch’ review.
This is important because calls for a more plan-led system are unlikely to be realised unless the effects of material considerations are acknowledged. It is particularly important because calls for more meaningful public engagement earlier on in the process of plan-making, so-called ‘frontloading’, are very unlikely to work in an end-loaded planning system.
This is why Planning Democracy have consistently called out those in the planning establishment who argue for frontloading as an alternative to equalizing rights at the business-end of the process where the decisions are actually made. The truth is that this is a false choice. Meaningful early engagement will only be achieved once people’s voices are accorded real power so that they can no longer be ignored with impunity.
Limiting rights of appeal to decisions where discretion is used to depart from the terms of an agreed development plan would be a powerful incentive for everyone to get involved from the earliest stages. This wouldn’t rule out the exercise of discretion in response to changing circumstances, it would just recognise that there is a case for pausing to take a second look when we do.
So why have the government and the planning establishment been so unwilling to even engage with these arguments? To answer this question, I think we need to ask ourselves what the point of planning is.
What’s the effing point?
I suspect this is a question the Minister may have asked himself once or twice over recent months. To their credit the government has recognised that it might be a good idea to introduce a statutory purpose into planning for the first time. This is a step in the right direction. [NB In the final bill the purpose for planning somewhat tellingly was limited to development planning and did not cover not development management, where planning applications are decided, ie the end of the planning process].
At present, however, the proposed definition is that planning powers should be exercised in the long-term public interest (contributing to sustainable development and the national outcomes). Humpty Dumpty, would doubtless approve. As he told Alice in Wonderland, “when I use a word, it means just what I choose it to mean”. This has long been true of both the public interest and sustainable development, terms that are capable of meaning everything and nothing whilst justifying just about any evil in-between.
The planning system in Scotland has, however, long had a de facto purpose that has effectively defined how the public interest is understood in practice. This has been acknowledged in policy if not law but is also powerfully present in the professional cultures of planning.
What is sometimes called the ‘presumption in favour of development’ is premised on the idea that development is, in and of itself, a good thing. This too has long historical roots. Despite the nationalisation of development rights in 1947, in a society where private property is sacrosanct, it has been persistently claimed that the state should only withhold permission to landowners where absolutely necessary.
In recent decades, this formulation has been reinvigorated under the influence of neoliberal ideology which views state regulation with mistrust and celebrates the free market as the most effective path to prosperity. This has shaped a dominant logic which equates development with economic growth which in turn is considered synonymous with the long-term public interest. Development is therefore on the side of the public interest and anyone who questions it is an enemy of progress (often dismissed as a self-interested NIMBY).
Today we see a particularly strong variant of the development/ growth/ public interest conflation operating around housing in Scotland. The logic is similar and it goes a little like this:
- There is an undersupply of housing.
- Therefore we need to bring forward sites for housing wherever people are willing to develop.
- By bringing forward sites for housing we are serving the public interest.
So development = housing = public interest. And the urgent imperatives of tackling the ‘housing crisis’ justify riding roughshod over agreed plans, community aspirations and priorities; seemingly irrespective of whether or not the sites developers want to build on are where we should be developing if we want to strengthen our towns and cities, live within environmental limits and improve lives, particularly for those people who have the least.
Given the importance of ensuring access to good housing for all, this version of the formula is hard to argue against. It also leads to some perverse political positions with developer interests claiming a public interest justification for their speculative profit-seeking. Surely even Humpty Dumpty would blush to see 5-bed executive houses on car dependent green field sites being presented as a contribution to social justice?
The strength of this formula allows developers to argue that planning regulation gets in the way, preventing them from building the homes the country needs. By all accounts this has been the key driver of the current reform process. Somewhat incredibly for me, many planning professionals seem to buy into what I would argue is really an anti-planning argument – that we need less regulation and that the key priority is to make planning quicker, more streamlined and efficient in granting permissions.
This is regulatory capture at work – those the system is meant to regulate are setting the rules. And it means Scotland does not have a planning system so much as a light-touch system for licensing development.
Rather than focusing on generating meaningful democratic debate about the best way of developing our land to sustainably meet society’s needs, planning authorities ask who has land they want to develop, choose the least-worst fit and call it a plan. Anyone whose site doesn’t make it into the plan can still apply for planning permission with a fair chance of success, especially if allocated sites don’t come forward for development as expected. Meanwhile, land owners and developers retain most of the increase in land value that accrues not from any effort on their part but due to the wider community’s decision to grant planning permission.
The trick here has been to convince everyone that the only way to build the new homes Scotland needs is through the market. But even on its own terms this logic is flawed.
For a start, historical evidence shows that we won’t build our way out of our current housing shortages by relying on the private sector alone– quite simply they’ve never built the numbers of new houses we should be building. And what is most profitable for private sector developers to produce (those five bed units) are not what’s really needed to tackle the crisis of affordability. So we end up with a trickle-down theory of house-building, hoping that more houses at the top will create space and lower prices at the bottom of the market. Even if it worked this would be an inefficient way of allocating land and building affordable housing. The idea that we might build our way to lower prices is, however, at best naïve. Prices are generally set by the cost of second-hand homes, houses today are financial assets as much as they are places to live and housebuilders are literally and figuratively mortgaged into the very processes that have created the current crisis.
While we need more homes, we don’t need homes at all cost. We need the right kinds of homes, at lower cost in the right kinds of places to prevent locking people into unsustainable lifestyles. Faced with the climate emergency a ‘business as usual’ approach to the use and development of land is not an option. If we care about people and places we urgently need to transform how we do things.
Rather than less planning and more market-driven development what is really needed is a fundamentally different approach to how we plan and develop.
There is an Alternative
Intriguingly many of the elements of a powerful alternative are already all around us. The same government that seems to view land-use planning with such suspicion elsewhere loudly proclaims its commitment to tackling climate change, reducing inequalities, empowering communities, reviving local democracy and reforming land Scotland’s deeply iniquitous system of land ownership.
A genuinely plan-led system could be a powerful tool for realising these goals. That means a system:
- empowered to ask not just which sites landowners are willing to develop but which sites should be developed if we are to meet society’s needs in the most sustainable way;
- Where plans are products of meaningful democratic debate and reflect community aspirations;
- With powers of land assembly and enhanced capacity to capture increases in land value, ensuring that the most sustainable sites are developed to the highest possible standards;
- that assesses the value of development primarily as a contribution to the growth of people and places rather than developer profits.
A range of ideas along these lines have been suggested by Planning Democracy and others over recent years Some of them are still being more actively explored outside the narrow confines of the planning reform debate (especially around number 3). Realising them will require recapturing our planning system – the fight for democratic control of land and its development needs to be reinvigorated.