By Prof Chris Willmore, Professor of Sustainability and Law (University of Bristol Law School).
Housing supply was marked as one of the key issues by the incoming government in 2015. Treasury estimates put the need for additional housing in England at between 232,000 to 300,000 new units per year, a level not reached since the late 1970s and two to three times current supply.
Aiming to tackle this issue, Communities Secretary Sajid Javid took the opportunity at 2016 Autumn Conservative Party Conference to announce a package of measures to speed up house building. Successive Secretaries of State have made similar pronouncements, to be followed by rather quieter explanations of why the measures failed, with blame variously afforded to councils, developers, or ‘nimbyism’. This time the ‘nimby’s were at the front of the queue for blame. What is surprising is not the announcement, but what it tells us about the role of the town and country planning, a massive and complex regulatory system that aims to chart a path through the conflicting environment, economic and social pressures affecting decisions about the use of particular pieces of land.
Time was when the land use planning system was run independently of economic policy. Overseen by the Department for Communities and Local Government (DCLG), it was positioned as a regulator at local, regional and national level seeking to manage the inevitable tensions between local and national aspirations, but with a strong emphasis upon local decision making tempered through an appeal process. Local communities have long argued that there was too much central control hindering the ability for local communities to determine their future, whilst central government expressed frustration about delay in delivering major infrastructure projects or economic objectives. Whilst the precise balance of power varied with time and central government concerns, there was a degree of consistency in the power relationship. Planning law itself has always been a vessel , a system, adaptable to reflect current policy imperatives, through planning policy but in a forthcoming paper[1], I argue that something more fundamental is now occurring.
The Blair government concluded that housing supply was having a negative effect on macroeconomic performance, legitimating the intervention of the Treasury in housing supply policy, with Treasury commissioned reports from Kate Barker (2004, 2006). [2] Whilst underlining the economic issues resulting from failure to deliver a sufficient housing supply, the housing supply process continued to rely upon DCLG and local councils as the drivers of planning policy and its local application, at least in name.
However following the General Election in 2015 a veritable tumult of consultations, policy statements and legislative measures have created turmoil in the planning world. A key feature of these is the role of the Treasury, with all major changes in policy or legislation in relation to planning coming from the Treasury, with the DCLG dealing with more detailed aspects. That in itself offers a crucial clue to one key facet of the change: the repositioning of planning as an adjunct to national economic (including housing) policy rather than a regulator of geographic specificities. As between the Treasury and DCLG, the former is increasing the source of major policy statements, with DLCG following up with technical consultations about implementation. And the forthcoming paper charts the extent to which reformulation of planning policy and changed approaches to national infrastructure are moving power from local councils to central government whether DCLG, Education or the Infrastructure Commission.
The meta policy priorities, such as housing targets are reflected by proposals in the Government’s Productivity Plan[3] published two months after the election, and the Rural Productivity Plan[4] that rapidly followed. Both included a suite of measures designed to facilitate planning consent for residential development. It is not insignificant that these are Treasury documents and are core references in much that has followed. The focus in these documents is economic, with reform of planning positioned as a core part of enabling productivity, and current planning law and practice perceived as ‘increasing the cost and uncertainty of investment’, ‘hindering competition by raising barriers to entry, adaptation and expansion’, ‘constraining the agglomeration of firms and mobility of labour’, and encouraging speculation ‘on land diverting resources away from productive activities’.[5] This Treasury engagement in planning is not confined to what may be seen as factors affecting macroeconomic issues; for example the 2016 budget included proposals about deregulating loft extensions in London![6]
Some of this is the traditional rhetoric of de-regulation, but what is being delivered is not de-regulation but restructuring regulation to deliver manifesto commitments. Manifesto goals are overtaking the planning process. Earlier this year the government proposed the removal of planning control over new state funded schools or school buildings. The consultation makes clear that this does not mean there will be no regulation at all, as before changing the use of a building to school premises, approval is required from the relevant education Minister.[7] However, functional Ministerial approval is replacing local planning approval, with a resulting loss of local participation in shaping local communities. The purpose of this was explicit in the opening statement of the consultation chapter:
‘The government is committed to opening at least 500 new state-funded free schools during this Parliament, which could provide up to 270,000 new school places. To support this ambition, we are proposing to increase current permitted development rights that support delivery of new state-funded schools and the expansion of current schools.’
We see here planning harnessed and subjugated to a manifesto commitment. These are not the only examples, and this is not the first government to move in this direction, but the pace of change is now far faster. We are witnessing the repositioning of planning from regulation of the application of national public policy to a tool in its delivery, shifting power from local regulator to national policy formulators.
Should we be explicit about this change?
Planning guidance and procedures are still embedded in the language of localism, with complex public consultation processes and local decision making in the formal sense (although so heavily constrained by the national policy imperative as to offer little real discretion). However around that the policy and targets are now coming directly from the Treasury. The public still believe the language and procedures of formal planning – that this is about decisions by local elected representatives and blame them for decisions which are locally unpalatable. There comes a point when the government needs to tell it as it is. Is it rather than are we doing anyone a service by continuing with the mythology of a ‘local’ planning system or would it be better to articulate a new deal, which was explicit about the shift in power in planning? At least then the public would find it easier to identify where real decision making power lies.
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[1] Planning law reform and reconceptualising the regulation of land use, in Modern Studies in Property Law volume 8.
[2] Kate Barker, Review of Housing Supply, (London, HM Treasury 2004) and Kate Barker, Review of Land-Use Planning, (London, HM Treasury 2006).
[3] HM Treasury, The ‘Productivity Plan’. Fixing the Foundations: Creating a more prosperous nation, Cm 9098, (London, HM Treasury, 2015).
[4] Towards a one nation economy: A 10-point plan for boosting productivity in rural areas, August 2016, DEFRA
[5] See footnote 11, July 2015 para 9.4.
[6] Budget 2016, HC 901, March 2016.
[7] Para 11.7.