The government looks determined to reduce the role of lawyers with its latest report on the planning regime. David Blackman examines what the Barker review means for the profession.


‘It’s déjà vu’ sums up the response of many observers to the government’s recent promises to reform planning. Five years ago, it embarked on an ambitious programme to fundamentally reform the planning system. Fast forward to 2006, and Chancellor Gordon Brown is promising another major shake-up.



To prepare the ground, Mr Brown commissioned Bank of England economist Kate Barker to undertake a far-reaching review of the influence of the planning system on British business. Last month, Ms Barker published her interim report, which largely consists of a wide-ranging analysis of how planning affects productivity.



The report is short on concrete recommendations, which will be outlined in the final document, due to be published to coincide with Mr Brown’s autumn pre-Budget statement. Nevertheless, looked at in tandem with the changes being mooted in the energy review to the way that major power generation projects are handled, Ms Barker’s report looks likely to have significant implications for what has, in recent years, been a boom area for the legal profession.



As in many other areas, the Barker review shows that the government has lawyers firmly in its sights. The interim report highlights figures from the Law Society’s own REGIS database showing that there were 1,906 planning solicitors last August – a figure that outstrips such higher-profile categories such as media and entertainment law. And it says planning law has experienced ‘significant growth in recent years’.



On the basis that the average planning solicitor earns £50,000 a year, the report estimates that legal fees for planning work amount to between £350 million and £500 million per annum. And that’s without taking into account the 300 members of the Planning and Environmental Bar Association, whose incomes the report does not even attempt to quantify. The legal profession, therefore, collects the biggest share of the £750 million that Ms Barker’s report estimates businesses fork out per annum in assorted planning fees.



Ms Barker has not inflated the cost, says Pat Thomas, who has just stepped down as head of planning at City firm SJ Berwin to set up her own practice. Part of the reason for the rise in planning-related work has been the burgeoning number of supporting statements, such as environmental and transport impact assessments, that developers need when submitting major applications. On top of fees, delays resulting from slow decision-making and refusals are costing businesses billions of pounds per annum, the report says.



The government may be embarrassed by Ms Barker’s conclusions that its own recent planning reforms have, in many cases, made life more complex for businesses. Despite the government’s goal of streamlining decision-making, she says the system still contains ‘substantial complexity’. She concludes that the government’s own planning policy documents are still too long-winded. And she notes that the need for councils to produce a statement showing how they have involved the community in planning decisions, which then has to be vetted at a public inquiry, has added another layer of complexity to the system.



‘Frankly, the system has become more complicated in recent years, with greater scope for lawyers to become involved,’ says Michael Gallimore, head of planning at City firm Lovells. ‘The reforms are not providing the certainty that everybody wants, although possibly in ten years’ time, it could be working.’ The hiatus caused by the recent shake-up has come at a particularly inopportune time, Mr Gallimore points out, when the government is seeking to improve housing supply.



The report says there is ‘little appetite for substantive structural reform’ that could further disrupt development. Ms Barker concludes: ‘Further large-scale structural reforms in this area are unlikely to be desirable at this stage.’ She says instead that she will focus on the scope for reducing ‘unnecessary delays and complexity in the planning system’ when she submits her final report.



Ms Thomas welcomes this decision not to push for a fresh and destabilising round of reform: ‘She sees the reforms need more time to bed down.’



Mr Gallimore, who has just stepped down from the Law Society’s planning and environmental law committee, thinks it is too early to tell what the Barker review is likely to mean for the profession. ‘The implications for lawyers depend on how the conclusions are translated into the detailed way that the planning system works.’



Much hinges on what Ms Barker identifies as ‘unnecessary costs and delays’. She says: ‘One man’s right to object to development is another’s delay, particularly in a system like planning, which involves umpiring highly conflicting interests.’

‘They are talking about simplifying the system to make it less confrontational and therefore arguably less work for lawyers, but I don’t see that happening in the long term,’ says Mr Gallimore. ‘As long as there’s a system for challenging planning decisions and there’s a proper democratic process, then there will be a role for lawyers to play.’



Tony Kitson, planning partner at City firm CMS Cameron McKenna, agrees: ‘Those who are opposed to the principle of a development will use any procedure as a way of opposing the development. There’s going to continue to be a lot of work for lawyers. Inevitably, lawyers and other professionals will continue to be highly involved.’



Paul Finch, a partner at Newcastle based Dickinson Dees who has also just left the Law Society committee, says: ‘There’s an inherent tension here. The government wants the planning system to be fairer, quicker and cheaper. You might be able to do two, but you won’t achieve all three.’



Indeed, for many lawyers, the focus on process is wrong-headed when the main issue they encounter is the lack of resources in local council planning departments, a point that Ms Barker acknowledges.



Any move to reduce delays is likely to involve a further shift away from the use of hearings, continuing a process that has been going on since the early 1990s. Such a shift will, in turn, have implications for the division of work between barristers and solicitors, whose role has increasingly become a backroom advisory one. ‘The likelihood is that it will have more impact on barristers because the objective is to reduce the amount of time spent at public inquiries and speed up the system,’ says Mr Kitson.



But what positive suggestions can lawyers make to Ms Barker about how costs and delays can be reduced?


Ms Thomas thinks greater use could be made of mediation to improve the process by heading off potential court clashes. She says solicitors have little to fear from greater efficiency.



Stephen Ashworth, a partner at City firm Denton Wilde Sapte, argues that lawyers should take greater responsibility by making positive suggestions for improving the system instead of defending the status quo out of self-interest. He has produced a 20-point plan of recommendations to improve planning.



Like Ms Thomas, he suggests much more could be resolved through negotiations instead of public inquiries. He says that inquiries should only deal with the key issues that determine whether the development should go ahead. He gives the recent public inquiry into Liverpool’s Paradise Street shopping development as an example of how the issue was brought into focus.



He says: ‘There was one question that needed to be asked at that public inquiry. That question was whether that was the right location for a retail development in Liverpool, or whether it should be further up towards the docks. As it was, we spent four weeks talking about issues like viability.’



He says the approach being taken in the energy review, where the government is proposing where power stations should be located and leaving the public inquiry process to deal with ancillary matters, is the right one. ‘It will mean less work for barristers, but the best ones will continue to feed their faces,’ he says.



But Mr Kitson thinks Gordon Brown’s hope of a quick-fix solution for planning is a pipedream. ‘Despite the best intentions of the government putting all this energy into the Barker and other reviews, planning will continue to be complex, and from the point of view of practices it will continue to be big business.’ It seems that planning can still offer lawyers a lucrative career after all.



David Blackman is a freelance journalist