Has Whitehall’s overhaul of planning laws thrown the whole system into disarray? Specialists in the field certainly think so, finds Grania Langdon-Down

A year on from the government’s radical overhaul of the planning system, solicitors in the field are warning that, far from creating a more efficient and streamlined service, the structure is in stasis.


Solicitors say the government’s ‘obsession’ with performance targets means local councils are refusing applications just so that they can meet time-limits, thereby prompting an increase in appeals, which in turn is creating a log-jam in public inquiries. Some developers are considering sponsoring planning officers in a bid to get their applications moving more quickly through the system, while the government’s ‘laudable’ aim of increasing the involvement of members of the public risks leaving them ‘consulted out’ and disaffected.


It is a year since the Planning and Compulsory Purchase Act 2004 received Royal Assent. The Act essentially created a regional strategic planning tier, with each local authority required to produce a development framework, compatible with the regional strategy, with both tiers incorporating extensive public consultation. Each of the bodies preparing the plans has to do so with the aim of achieving sustainable development.


Stephen Ashworth, a partner with City firm Denton Wilde Sapte, is one of the country’s top planning lawyers, according to Planning magazine’s annual poll of individual planning solicitors. He does not mince his words about the Act. ‘It was probably the greatest waste of a legislative opportunity, bar the Fox Hunting Bill, in the last decade. We had five ministers of state during its progress on to the statute book. The Lord Chancellor Lord Falconer promised it was going to be the most radical re-evaluation of the planning system since 1947 – and that was entirely wrong. It ended up being a set of watered-down measures that have made no difference to the practical operation of the system.’



He adds: ‘Almost without exception, everything which is being done as part of the local development framework system can and should have been done as part of the old system. All that was needed was a bit more cultural encouragement to planning officers to do it. We have created a whole alphabet soup of new plans and new arrangements without adding anything to the process.’


Mr Ashworth predicts that the system will settle down. ‘But, in three years’ time, it will look exactly the same as the old system. The only difference in substance will be that inspectors’ reports will be binding – was that worth a whole lot of legislation?’


Michael Gallimore, who tops Planning magazine’s poll, as voted by planners and lawyers, is head of planning at City firm Lovells, which has 11 fee-earners in its planning and environmental team. He says: ‘The original focus for the legislation was to speed up the way major infrastructure projects were dealt with after the furore over the Heathrow Terminal 5 inquiry, but it became a mess. The focus changed to reforming the framework for planning policies and some tinkering with the development control system. It is now taking so long for the new plans and policy documents to get in place we are seeing planning in a vacuum.’


He says it is too early to say if the government’s twin objectives of speeding up the system and encouraging community involvement will take hold in the long term – but they are not succeeding in the short term. The first objective is being hampered by the planning delivery grant system, whereby local authorities receive funding from central government if they meet certain performance targets, including determining applications within defined periods.


He says: ‘What we are now seeing are applications on quite complex schemes making good progress through negotiations with the council. Then the council will suddenly turn round and say “either you withdraw it and resubmit it or we have to refuse it to meet our targets”. The system that should result in good and sensible planning is now being dictated to by the requirement to meet government targets. Authorities are also coming up with all sorts of ruses to get round them, which is in danger of bringing the system into disrepute.


‘This obsession with performance targets has inevitably led to more appeals and now there is a complete log-jam in securing inquiry dates, which can be over a year ahead. Getting a final determination can take up to two years, which is leading to huge frustration on the part of the people trying to deliver all the new development the government is telling the country it needs.’


Top-ranked planning lawyer Karen Cooksley is head of regeneration at national firm Bevan Brittan, with 18 fee-earners in her team. ‘The system is in stasis. The way in which planning authorities are dealing with applications speedily is to refuse them. The appeal system is now so clogged up that if you lodge an appeal by way of a public inquiry, you won’t get a date for 14 months and it will then take a further six months for the decision to come through.’


She says problems are being exacerbated because the reforms are being introduced ‘piecemeal’. She explains: ‘We still only have partial implementation of the 2004 Act and it seems a moveable feast. You ring the Office of the Deputy Prime Minister (ODPM) and ask when a particular provision is coming into force because you are planning a strategy, and they say May, and then it doesn’t happen. We also still need quite a lot of secondary legislation before flesh can be put on the bones of the reforms. At the same time, we are dealing with an awful lot of changing policy at local, regional and national levels.’


She adds: ‘All this is great for the consultants and the lawyers, but not much good for the developers or the local authorities or, indeed, the public, who are finding it very hard to engage in the system and there is a real danger that they will become consulted out and disaffected by the process.’


Mr Ashworth says: ‘The statements of community involvement have the capacity to make the system better and more attractive, but it remains to be seen whether that will be the case because very few people within the planning system genuinely want there to be that sort of level of consultation.’


Tim Hellier, another leading planning lawyer, is a partner at Berwin Leighton Paisner, which was ranked by Planning as the top firm in the field. He says there is an ‘inherent conflict’ in trying to speed up the system and introduce greater community involvement, arguing that the government’s vision of building consensus is always going to be difficult to achieve: ‘You can never strip out contention from planning because, by its very nature, it is about rationing land use.’


He warns that there is a serious question mark over whether local authorities have enough resources. ‘There is a general shortage of planners. The government is funding postgraduate courses but the lead-in time will be about five years, and the problem is now.’


Ms Cooksley agrees: ‘We often get Australian, New Zealand and South African youngsters, whose experience is in their own jurisdiction, working for the London planning authorities for six months or a year. One colleague told me he was on his fifth case officer inside two years.’


One option is for developers with a major application to sponsor a case officer, who will be employed by the local authority but be dedicated to that development. Ms Cooksley says: ‘It costs about £20,000 – planning officers don’t get paid that much. Someone asked me was it lawful, because people would be suspicious about it. But it doesn’t affect the decision the members of the council will take. A lot more of this kind of creative thinking is going to be needed if we are going to unlock the stalemate we have in many areas.’


The government’s guidance on changes to the system of planning obligations flags up overt support for applicants to fund the provision of a planning officer. Mr Gallimore says: ‘If the effect of someone paying for an additional resource frees up resources for smaller applications to be determined more quickly, then everyone should win. It has already been done on some of the big regeneration projects. There is nothing wrong with it, provided there are clear ground rules and the council retains its independence to make an impartial decision at the end of the process.’


The issue of planning gain – where developers agree to build 25 affordable homes within a 100-home development or install badger tunnels beneath a new road – is also in a state of uncertainty. The process, known as a section 106 agreement, is likely to be replaced by a system that would give developers the option of simply handing over money to local authorities in recognition of planning opportunities.


Ms Cooksley says: ‘The government is looking at a tariff system where a developer would pay a price per unit for various community benefits – an idea which is being pioneered in the Milton Keynes Growth Area. The latest policy proposal suggests the system could also be broadened out so the money collected from a number of developers could be pooled for something that goes across boundaries, such as a school. However, the guidance in its current form is flawed. In its haste to speed things up, the government is not handling these issues in a holistic way.’


Mr Gallimore says developers would be happy with a tariff system if it brings certainty. ‘The problem is the government has said there will also have to be a negotiated element to deal with site-specific issues on a case-by-case basis.’


Mr Hellier adds: ‘The issue is wrapped up in a debate over development land tax. If you bear in mind the Chancellor of the Exchequer is running out of cash, the thought of a nice cash-raising scheme which affects landowners rather than the man in the street must be very attractive.’


Ms Cooksley sees a problem with the government’s conflicting demands. She says: ‘What the government is trying to do is deliver a large quantity of private and affordable housing very quickly, particularly in London and the south-east, and at the same time drive up quality. But there is a tension between those two. If you are saying you want more housing, more densely provided on brown-field sites, more quickly, but the houses must also be beautiful – and, by the way, cheap – then you will find those drivers pulling in different directions. A lot of people drafting policy in the ODPM sometimes don’t seem to understand the existing law and policies and their implications – the planning system is a web, with lots of things interconnecting.’


Mr Gallimore agrees. ‘This new system has been introduced at a time when the government is urging more development, more housing. But the decision-making infrastructure is not there to allow it to happen quickly. It might have been better to have delayed the new system rather than have the two being run in parallel, because so many of the provisions of the new legislation, including the policy framework, are still not in place.’


Another aim of the 2004 Act is to simplify the system so lawyers can be cut out of the picture. Mr Ashworth says: ‘That is an entirely laudable aim, but don’t set up a new system if you want to remove lawyers from the process. Creating new law, which people feel unsure about, in order to remove lawyers from the process seems to be somewhat counter-intuitive.’


Mr Ashworth adds: ‘The key problem with planning is the lack of people with real vision and courage to move things forward. At local authority level, most planners, with some honourable exceptions, have been castrated over the past 20 years and only think about operating within the rulebook.


‘There are also too few visionary developers – if that isn’t an oxymoron – and we need to make it easier for them to come forward.’


It is not just planners who are to blame, he adds: ‘The professionals that support the local authority planners – including lawyers – are too often just fee-seeking. They are looking for objections instead of thinking how they can reshape the plan so it delivers the vision held jointly by the public and private sector. We should all remember we are there to facilitate change and improvements – too often, the professionals are impediments to the process.’


Grania Langdon-Down is a freelance journalist