Whatever the pace of change ahead, developers should pursue the right strategies, suggests hgh Executive Director, Roger Hepher.
The measures announced in the King’s Speech to encourage development will undoubtedly galvanise the development sector. However, planning is never going to be straightforward, so it is important that promoters of development remain grounded, and pursue the right strategies. We can still only speculate about what the final version of the NPPF will contain later in the year, and about other planning changes we know are in the pipeline. As ever, the devil will be in the detail, and the detail may or may not live up to the politicians’ rhetoric.
However, supposing it does, there are a number of important things developers will need to be aware of:
1.The legal basis for planning decisions will remain unchanged at least for the foreseeable future, and it requires decision makers to start by considering what the development plan says. Only when they have done that are other material considerations to be taken into account. The revised NPPF will be a material consideration, but Councils reluctant to accept development are likely to cling tenaciously to their Local Plan policies. It will therefore be as important as ever that the planning case is articulated as clearly (and perhaps as creatively) as possible.
2. It is likely that more planning applications will be appealed. The Planning Inspectorate – which has worked hard in recent times to improve its performance times – will hopefully be anticipating this and putting arrangements in place. However, appealing will doubtless continue to be a slower process than we would all wish. Developers should therefore consider twin tracking, with a view to starting the appeal process at the earliest opportunity whilst hoping the local planning authority will in due course grant permission and allow the appeal to be withdrawn. This is not a straightforward decision – it
comes at a cost in terms of the statutory fee, it can be thwarted if the Council refuses to validate the duplicate application, and the way in which the tactic is presented needs careful thought.
3. The requirements for Environmental Impact Assessment are unchanged, and EIA has much potential to slow things down and also to lead to legal challenge. There are ways of containing this potential – for example, by careful screening and scoping, and by putting in place in advance through a Planning Performance Agreement (PPA) arrangements
for aspects of the Environmental Statement to be assessed by the local planning authority.
4. Section 106 agreements are likely to become more complex with the new impetus on affordable housing and local infrastructure, and that added complexity will tend to mean added delay. To some extent this can be mitigated e.g. through PPAs, through the developer’s planning solicitors being pro-active and through employing an appeal strategy as noted above.
5. In Greater London the involvement of the GLA in major applications can sometimes slow things down. Hopefully the Labour Mayor will join in the spirit of the Labour Government to speed up the delivery of development. However, there are in any event things that can be done to ease the passage of applications through the system – in particular, holding pre-application discussion with the GLA, and by this means developing a relationship with the GLA case officer.
6. More infrastructure projects will be channelled through the Development Consent Order (DCO) route, thus largely taking them out of the local political arena. This is a welcome move. However, developers need to be aware of the importance of careful preparation and consultation. Lack of attention to either can lead to avoidable delay. They also need to be aware that, although the eventual decision will be based on an assessment by the Planning Inspectorate, it will be taken by the appropriate Government minister.
7. If local objectors and their politicians feel they are being allowed less opportunity to thwart development proposals, they are likely increasingly to consider judicial review. There is no way of preventing this, but developers can certainly take steps to minimise the likelihood of challengers being successful e.g. by being very careful about planning application material, by taking legal advice early on in the process, and by working with planning officers to ensure that Committee reports are as watertight as possible.
New Route
The new Government’s approach is perhaps akin to opening a new motorway – it is intended to allow developers to reach their destination faster and with less risk of getting lost or being diverted en route. However – to pursue the analogy – it will only work if the vehicle being driven is the right one, and it is prepared and driven in the right way. Oh, and to completely overdo the analogy, we also need the Government to make good its pledge to employ more planning officers; otherwise the motorway will forever be blighted by tailbacks.
Photo by Paul Buffington on Unsplash
