PLANNING AHEAD

Michael Gerrard looks at the mixed reactions to the planning green paper, as proposed by Stephen Byers, and asks whether its aim to please all and streamline the system is simply too unrealistic.Last December, while most solicitors were concerning themselves with Christmas preparations, a cabinet minister released a green paper that promises to introduce the biggest shake-up to the planning system for more than 50 years.But when one realises that the cabinet minister in question was Stephen Byers, Secretary of State for Transport, Local Government and the Regions, it is probably of little surprise that the response has been mixed - the planning lobby is as divided as the striking railwaymen and their commuters.And despite not hitting the headlines, this policy is likely to be every bit as important to the general public as trains holed up in their sidings.The green paper, the preparatory stage from which a government Bill is produced, sets out, among other things, to change radically planning procedures and the relationship between a developer and the planning authority.In launching the paper, Mr Byers stated: 'We want a planning system in which the values of the whole community are allowed to prosper and develop.'Our proposals have been characterised as being good for business.

That is true.

But they are good for the rest of the community, too.'And therein lies the crux of the matter; some argue the paper is trying to be all things to all people.Inspired by demands two years ago from the Confederation of British Industry, the green paper sets out to address criticisms that the current planning system is too slow and unresponsive to the needs of business.At the same time the paper claims that it is attempting to give the wider community a greater say in planning proposals.Tony Curnow, head of planning at City firm Ashurst Morris Crisp and a member of the City of London Law Society's planning law sub-committee, asks: 'How does the government reconcile the public's involvement in planning with the need for speed and certainty?'This concern is brought into sharp focus over the proposals for major infrastructure projects - under which planning permission for projects such as airport terminals, nuclear power stations and motorways, would be the preserve of Parliament.This is seen as an attempt to end the lengthy public inquiry process, which was thrown into sharp relief by the inquiry into the plan for a fifth terminal at Heathrow Airport.Once the honourable members had voted on the principle, the public would only get a say in inquiries in relation to the details, but not whether the project should go ahead in the first place.

The public inquiry, as such, would be consigned to history.Naturally, this proposal has raised the hackles of environmental groups, who suggest this move to speed up decisions will squeeze them and concerned individuals out of the process.In addition, they claim that previous manifesto commitments to grant third-party rights of appeal have been junked.

Though such rights do not currently exist, campaigners predict that another piece of recent groundbreaking legislation will eventually force Whitehall's hand.Paul Stookes, a solicitor and chief executive of the Environmental Law Foundation, says: 'We believe that the lack of a third-party right of appeal may well be contrary to the European Convention on Human Rights which provides that everyone is entitled to a fair public hearing by an independent and impartial tribunal.'While the representatives of the public and pressure groups worry about being marginalised, on the other side of the divide, those solicitors engaged in the process say that some of the proposals as they stand will hit their clients.At the same time as applauding the advent of business zones, which, in the manner of the old enterprise and development zones, will attempt to cut through red tape and encourage development in specified areas, planning solicitors reflect their clients' fears that their pockets will be picked elsewhere.Concerns surround the advent of automatic tariffs on development, which will not so much terminate the thorny subject of planning obligations but, in the eyes of some, add a further cause for dispute.Currently, whenever a developer puts in for a planning application, it is subject to a series of agreements with the planning authority, relating to obligations to provide infrastructure improvements such as new village halls or roads.Crucially, such improvements are directly related to the specific application, but under the proposed tariff scheme, developers will be obliged to stump up cash to go into a general money pot.Kate Hall, a partner at Eversheds and chairwoman of the Law Society's planning law committee, applauds the idea of simplifying a system that often leads to months of horse-trading.But she says: 'The radical view of tariffs is that we should accept that planning obligations are a positive move towards bringing forward appropriate development, aiding the economy and so on.'Others voice concerns that the yet-to-be-settled tariff system could be viewed as a 'poll tax' on developers, especially as there will remain an obligation to negotiate on issues such as providing social housing, which - under the proposals - would in future apply to commercial as well as residential developers.All sides in the planning debate are curious about the proposed introduction of a local development framework (LDF), which aims to simplify the current three tiers of strategic planning: structure plans, unitary development plans and local plans, into a single layered process.As with much else in the green paper, the specifics have yet to be worked out, and into this vacuum has grown a concern about whether or not the LDF system will actually speed things up.This is caused mainly by provisions in the proposal for the introduction of local area action plans and even lower-level neighbourhood and village plans.To some, this attempt to streamline the planning process has the potential of actually making life more complicated, as greater emphasis is given to wider community involvement from an early stage.David Brock, a member of the Law Society's planning law committee and head of planning at Mills & Reeve in Cambridge, notes the concerns of some of his clients: 'There is some scepticism that pushing the plans further down to the people will actually speed things up.'It could be that giving the public more scope for involvement will actually slow things down.'On top of all these concerns, planning solicitors have reservations on several other subjects highlighted within the green paper and accompanying consultation papers, including proposals to reform the compulsory purchase system, the provisions for which are currently spread through several pieces of legislation enacted during the past century.There is also worry over proposals to criminalise breaches of planning permission, something that has naturally alarmed property developer clients.Determined to display co-operation with the government's aims, a delegation from the Law Society's planning law committee met last month with the minister in charge of this policy, Lord Falconer.The group expressed support of the green paper's general aims and accompanying consultation documents, even offering to lend professional support to iron out some of the technicalities.Committee member Brian Greenwood, a partner at City firm Norton Rose, sums up the reservations many of his colleagues in the planning law sector have about the green paper.He says: 'In some areas it is going from problem to solution without considering the mechanism by which the solution can be achieved.'Mr Greenwood also notes that several of the proposals will require primary legislation in order to be enacted and he wonders whether a government already pushing through mountains of Bills will provide the necessary parliamentary time to debate such matters.If they do, solicitors working in the field will be poring over the details, to see whether some of the many concerns they have already expressed have been addressed.Michael Gerrard is a freelance journalist