Is a new planning law what we need?

Planning experts are doubtful that the new government needs to embark on radical legislative reform to achieve their ambitious targets on housing and energy.

The new government introduced a Planning and Infrastructure Bill in the King’s Speech, arguing the planning regime acts as a “major brake on economic growth“.

Although few details were provided in the speech, the Bill will seek to “speed up and streamline” the process for building more homes and will attempt to “accelerate” the delivery of major infrastructure projects.

However, a number of experts were doubtful whether a major rewrite of planning law was really needed.

“Legislation is not the magic wand that politicians hope it will be,” James Maurici, a K.C. at Landmark Chambers told City A.M. 

“There have been a number of major legislative changes since 2004, all of which were designed to streamline the system. In fact, on each occasion, all these changes did was make things more difficult.”

Maurici argued that the levers to achieve the government’s targets “already exist”. Indeed, the new government has already been making use of these levers, such as through changing policy statements.

Policies are principles set out by the government to guide planning decisions. Unlike legislation, policies can be changed by ministerial decree.

It was small changes to the National Planning Policy Framework (NPPF) in 2015 that made onshore wind developments essentially impossible. These changes were reversed within days of the new government entering office.

Further updates to the NPPF are expected next week, including the restoration of mandatory housing targets for local authorities and a review of the green belt.

Ministers can also directly intervene in the planning system for nationally important pieces of infrastructure. Since entering office, Ed Miliband, Secretary of State for Energy Security and Net Zero, has issued development consent orders (DCOs) for three major solar projects.

Maurici argued that the government should continue using these levers rather than turn major legislative changes, which would add an extra layer of complexity and increase uncertainty.

“Changing legislation is a long process which just creates more uncertainty,” he said. “The moment you say you’re reforming the planning system, it has a deadening impact on investment because investors do not know what the planning regime will be at the end of the process”.  

Charlie Reid, a planning partner at Ashurst, also pointed to out that the government had made a lot of progress without big legislative changes.

“We’ve seen already over the past few weeks how quickly the government can move within the confines of the existing system,” he told City A.M. “The system functions if you use the tools at your disposal in a strategic and coherent way”.

In any case, Reid was doubtful that the government had radical ambitions for the Planning and Infrastructure Bill. “There isn’t a whole lot of detail about the bill but I don’t think there’s been any signals from the government about root and branch reform,” he said.

Catherine Howard, a partner at Herbert Smith Freehills (HSF), agreed that the issue was not with legislation.

“In many cases it’s not the law that is the problem but the policies that decisions are based on, and the local politics which drive refusals,” she told City A.M.

Apart from major pieces of infrastructure, most planning decisions are taken by local councils. If developments are rejected by the council, then the government can recover applications through the use of ‘call-in’ powers.

The government has said it will be much more active in using these powers, but even then Howard warned that it might not do much to speed up the process – at least in the short term.

“Angela Rayner, has indicated she will ‘call-in’ and ‘recover’ more decisions for her own determination, but she won’t be able to do so without holding a public inquiry. So in terms of speed, this won’t help those projects,” Howard said.

Over a longer time horizon, however, Howard hoped the use of ‘call-in’ powers would create a clearer precedent which would make it more difficult for local councils to reject developments on “spurious” grounds.

A spokesperson for the Ministry of Housing, Communities and Local Government said: “Our planning reforms will turbocharge housebuilding and the delivery of critical infrastructure by unlocking more sites for development. We will also recruit hundreds of new planners and upskill existing planners to speed up decisions for new developments.”