The Government is to shake up the UK's planning system, but not everyone is convinced that this will improve the process, writes David Blackman


The biggest shake-up of the planning system in more than a generation is how the government describes it. For David Brock, incoming chairman of the Law Society’s planning and environment committee, the government’s package of reforms raises some profound constitutional questions. ‘It’s a huge issue,’ he says. ‘It’s about the relationship between the citizen and the state.’



What has got Mr Brock particularly hot under the collar is the government’s proposal to establish a new commission to handle major infrastructure projects, such as airports and nuclear power stations.



Its recently published White Paper proposes that decisions on the level of infrastructure should be set out in national planning statements, which will be drawn up by the government and vetted by Parliament. Developers will then be able to submit applications for projects, which will be determined by the independent planning commission (see box, bottom right).



The establishment of the commission has been prompted by the planning delays which have bedevilled a string of major projects. The best-known example is the four-year long public inquiry into Heathrow Airport’s terminal five. The government is keen to speed up processes which are holding up the delivery of energy and transport projects that the country relies on.



Paul Finch, a planning partner at Newcastle-based Dickinson Dees, welcomes the new commission. ‘In principle, it’s a very good idea for effective decision making,’ he says.



The commission will make its decisions based on the evidence it has received via written representations and at public hearings. Under the government’s proposals, there will be no opportunity for cross-examination of witnesses at these hearings. ‘Instead of having an inquisitorial system, they will have an open floor with people sticking their hands up,’ says Mr Finch.



The key issue is likely to be how witnesses are called in these open sessions. One danger is that too many people will be asked to take the floor, leading to the process become gummed up. Mr Finch says: ‘It raises the problem that everybody gets heard and nobody gets listened to.’



Mr Brock has the opposite concern – that many people will be excluded. ‘It’s going to be difficult because people will feel shut out,’ he says. ‘If you can’t get up to ask a question, people tend to get very aggrieved. People feel good when they stand up and have their say.



‘The important issue here is the principle that everybody has the right to appoint a representative to speak on his behalf, which people fought long and hard for in the 1960s and 1970s.’



For those aggrieved by the commission’s decisions, the courts will provide the redress mechanism. Michael Gallimore, head of planning at Lovells and the man recently voted the country’s leading planning solicitor (see [2007] Gazette, 14 June, 6), says that the sheer number of opportunities available for judicial review threatens to stymie the commission’s work, negating many of the time savings that the government wants to achieve.



Mr Brock, who is a partner at the East Anglia firm Mills & Reeve, agrees. ‘There will be a lot of small people out there who will want to make a challenge,’ he says. He understands the government’s motives, but says it is going down the wrong route. ‘It’s getting increasingly difficult to get permission for nuclear power stations and waste disposal facilities, but you need to be able to change hearts and minds.



Ian Trehearne, senior executive at City firm Berwin Leighton Paisner – voted leading firm in the Planning magazine survey – says he doubts whether it is possible to remove controversial decisions from the political arena.



Mr Brock claims the government’s real motive is to clip the wings of highly paid planning lawyers. ‘The government does not want lawyers to be involved in the planning process,’ he says. ‘The changes and reforms have been designed to reduce lawyers’ participation in the process.’



But he predicts that the government will not succeed in reducing legal input. Many of those appearing at the commission’s hearings will want legal advice to ensure that they are asking the right questions.



Aside from the commission, the paper contains a host of other procedural changes designed to simplify the way local plans are formulated and planning appeals handled.



Reducing the number of appeals and weeding out so-called frivolous challenges are designed to cut the work-load of the Planning Inspectorate, so enabling the Bristol-based agency to turn around decisions more quickly. The proposals include setting a target to reduce the number of cases that are referred to the government offices for decisions. The deadline for submitting appeals will be cut from six to three months and the inspectorate will be able to choose whether appeals are decided at a hearing or on paper. The White Paper also proposes that those lodging an appeal should pay a fee.



Mr Brock says he is ‘uncomfortable’ with the idea of a fee. He argues that the appeals services, like other dispute resolution mechanisms, should be free at the point of delivery. ‘The services of the government are paid for out of general taxation, so the services of the Planning Inspectorate should be.’



Tony Kitson, a planning partner at City firm CMS Cameron McKenna, says the government’s thinking is flawed on this issue. ‘People appeal out of frustration at the way their applications are handled and they have to resort to an appeal to get anything done,’ he says. ‘If they didn’t appeal, the local authorities would never get round to dealing with their application.’



Mr Trehearne does not believe that cutting the deadline for submitting appeals will work. He says that it will prove problematic for large, complicated regeneration schemes because it will give less time for negotiation between developers and councils.



The upshot, says Angus Evers, an associate at City firm Norton Rose, may after all be less work for some lawyers in the planning field. ‘If you are going to cut down the length of planning inquiries, there’s going to be less work,’ he says. ‘It’s likely to affect barristers more than solicitors. Planning solicitors who do inquiry work will be affected. On the other hand, by shortening the length of inquiries, you can see there being more legal challenges by people who feel they have not had a fair say, so there may be an increase in work for litigators.’



On top of changes to the appeals process, the government is also simplifying the procedures for drawing councils’ local development frameworks (LDF). The White Paper proposes scrapping rules stipulating that councils have to hold an inquiry into how they consult the public. Cutting out consultation on the draft LDFs will shave eight months off the process, says the White Paper.



Stephen Ashworth, a partner at City firm Denton Wilde Sapte, says these changes are largely welcome, although his sentiments are unlikely to be echoed by many of his peers. ‘Changing the LDF process is going to clobber the legal industry because it will push planning back into what it ought to be, which is about deciding on land use rather than discussing legal processes,’ he says. In the short term, he adds, the new arrangements will be a lawyers’ paradise. But he agrees with Mr Evers that in five years the number of people practicing in the field will have dropped.



But while the government is obsessed with the process, Mr Kitson believes the problems of the planning system are as much to do with resources. ‘The system is only as good as the people who are administering it,’ he argues. ‘And if they are under-paid, part-time people with no commercial expertise, it’s not going to work.’



David Blackman is a freelance journalist



Key parts of the planning White Paper

l It allows amendments, such as installing an extra door, to schemes that have already been permitted, without having to submit a full application.

l It makes economic prosperity a bigger factor when considering whether schemes should go ahead.

l It introduces a standard planning application form.

l It allows minor developments, such as house extensions, to be go ahead without the need for full planning permission.



The independent planning commission

l The commission will be made up of between 20 and 30 members, including lawyers, who will be experts in the field of infrastructure planning.

l Each decision will be vetted by a panel made up of commission members.

l Commission members will have eight-year terms so that they can take unpopular decisions without worrying that they will be sacked.

l The commission will have a nine-month deadline for determining major projects.

l It will take its decisions within the context of policy statements produced by the government, which may identify locations for major projects.


l A number of consents, principally those under the Transport and Works and Planning Acts, will be unified for major projects.