The government wants to speed up local planning, but some lawyers fear proposals for more community involvement could increase red tape.

Mark Smulian reports

When the government turns a policy area upside down in the name of reform, the legal profession usually at least has a good idea of the changes it must prepare to meet.

Not so with the current reform of planning law.

There was a Planning Green Paper as far back as 2001 - and the Planning and Compulsory Purchase Bill first appeared in 2002.

Then it vanished.

In June 2003, it gained the distinction of being the first piece of draft legislation carried over from one session to the next under new procedural rules.

In November, nearly two years after it first appeared, the Bill finally made it into the House of Lords, where it has undergone further substantial change through both government amendments and opposition ambushes.

Confused? Try being a planning lawyer.

To make things worse, crucial parts of the Bill allow merely for subsequent regulations, leaving solicitors none the wiser about the new system's details.

It all comes at a time when developments continue apace, whether they be the 1,000ft-tall 'Shard of Glass' - the London Bridge Tower as it is properly called - the 100 million Coventry Arena, or the controversial 2.3 billion, 20-year regeneration of the Cricklewood/ Brent Cross area of north London.

'It has all been a bit of a mess,' says Michael Gallimore, partner and head of planning at City firm Lovells.

However, there are two objectives that everyone is clear about.

The government wants a regional strategic planning tier, with district and unitary councils devising a range of local plans based on the regional plan and with both tiers incorporating extensive public consultation.

The present leading role of county councils would go.

It also wants to allow developers the option of simply handing over money to local authorities in recognition of planning opportunities - a move that would speed up planning, it says.

This would remove the process known as a section 106 agreement.

For example, instead of being obliged to agree to build 25 affordable homes within a 100-home development, or to install badger tunnels beneath a new road, a developer could pay a sum deemed equivalent to the local authority.

Originally, these 'tariffs' would have been obligatory.

However, the idea generated sufficient anger that developers will now have a choice of this route or a traditional planning agreement.

The Law Society last month expressed concern that such an important aspect of the town and country planning system should be framed in secondary legislation (see [2004] Gazette, 15 January, 6).

But the government's desire to speed up planning runs up against the Bill's other main feature - greater and demonstrable community involvement.

'There is a conflict in those two aspirations,' as Mr Gallimore puts it.

'Lawyers will have to look at getting the developer through demonstrating community involvement, which is not just holding a few exhibitions, and it will be quite a challenge to manage that.'

David Brock, planning law partner in the Cambridge office of Mills & Reeve, says: 'Overall, the system will run very much more slowly.

You will have to consult with everybody and deal with their responses.

Consultation alerts people to what is going on.'

A less pessimistic view comes from David Watkins, partner in environment and planning at City firm Linklaters.

'Everybody expects a greater degree of consultation nowadays,' he says.

'Sophisticated developers always consult the community in a variety of ways.

Do it early and there should not be such a lot of objectors turning up at the planning committee stage.'

Consulting early will hasten the process, but it will still be slower overall, he reckons.

'The government said in the Green Paper that the process should be faster and more transparent, yet they seem to be doing everything in their power to prevent this.

There are reams and reams of guidance to absorb on how to do things.'

Mr Watkins fears that councils will fail to cope with all this because there is a severe shortage of planners even without councils having to handle a major reorganisation.

He maintains that the process may become so slow that it will be worthwhile for larger clients to pay a local authority to employ a planning consultant to handle matters on its behalf.

He cites his recent experience with the Shell Centre development in central London, where his section 106 negotiation was not directly with Lambeth council but with law firm Sharpe Pritchard, acting for it.

The system of paying lump sums, on the face of it, would reduce lawyers' work because there would be fewer agreements to be drawn up.

But Mr Brock doubts there will be many.

'The development industry has huge difficulty in putting a value on, say, affordable housing or nature restoration in a complex development,' he explains.

'They will be trying to account for perhaps building ponds for drainage, a community centre, link roads and affordable housing, and none of them provided on day one.

How do you put that into a lump sum?'

Even if done successfully, many applications give rise to the need to mitigate adverse environmental effects - and here the lump sums run into additional problems.

Mr Brock says: 'If the council is given a lump sum to do the mitigation, there is no mechanism to compel it to do the work, so the environmental mitigation may not happen.

Lack of mitigation could be challenged by objectors, and the planning permission voided.'

Planning lawyers argued that there should be a contractual obligation to ensure that a council spends a lump sum in the way intended.

'The government has said "no".

It will rely instead on National Audit Office reports - they are good reports but they come out about 18 months after the event,' Mr Brock adds.

Leaving the details of the new planning system to regulations has left lawyers in the dark, complains Mr Brock: 'They have abolished the substantive section of the present law and replaced it with something that says government ministers can make regulations.

Until we see those regulations, we do not have the faintest idea of what will be allowed and how this will work.'

Mr Gallimore is sceptical that many developers will bother with making payments, since they would still need to negotiate an agreement to deal with site-specific issues, such as road access to their site from the public highway.

'The developer could end up paying twice - once by cheque for a lump sum and once for the site agreement,' he says.

Confusion in the new system alarms Mr Brock, even though the presumption in favour of developments that conform to local plans will remain.

'There will be a complete change to the development plan system,' he says.

'At present, there is a combi-nation of structure plans and local plans each as thick as a small book.

You can pull that down and see all the policies.

'Under the new system, there will be smaller plans for different topics all capable of change independently of each other.

You will go to bookshelves and pull down a lot of pamphlets and it will be quite difficult to find out what is the most recent one and what planning policy is.'

One improvement, he admits, is that it will be possible to change plans much more quickly than the five years needed under the present 'ossified' system.

Despite these issues, planning remains a busy and growing area of legal work and a popular one with new entrants.

Mr Gallimore says: 'One attraction for younger lawyers is that they get to take part in a very tangible process.

'You go to a site when it's vacant, then go back and see something built.

It is not like spending all day on a 100-page contract.

It takes in planning, environmental and property law - and people tend to come out well-rounded lawyers.'

Linklaters tries to groom its own planning lawyers from among trainees who show enthusiasm, and has no shortage of applicants, Mr Watkins says.

Mr Brock notes that planning lawyers do not just deal with other lawyers, but with engineers, surveyors, planners and private finance consultants too.

'We are in court quite a bit and have more cases going to trial than do the litigators in the firm,' he says.

'Developers fight cases to the bitter end.'

Mark Smulian is a freelance journalist