planning and environmental law update
The Tories' cryptic message
Caroline Spelman has made some significant statements in respect of
proposed Conservative planning policy, should they win the next
general election, which must be called by May 2010.
Emerging proposals for planning policy began to come from the
Shadow Minister in February 2009, with the publication of the
‘Control Shift’ Green Paper. The Green Paper set out the
Conservative's intention to remove the top down approach of the
Labour administration and hand power back to local authority level.
In a planning sense, they would remove Regional Spatial Strategies
(and Regional Planning Bodies), citing the lack of democratic
accountability in the production of these documents and the long
delays which are occurring in their production due to legal
challenges. Furthermore, they would abolish the Infrastructure
Planning Commission, preferring the establishment of a major
casework unit where the Planning Inspectorate would deal with major
infrastructure projects.
The February Green Paper was followed in April by the ‘Strong
Foundations’ Green Paper. This paper set out the Conservative
belief that the housing crisis had occurred because of two major
mistakes of the Labour administration. The first was to allow
debt-fuelled growth in the 1990s which led to a proliferation of
people purchasing houses they could not afford. The second mistake
was the top down approach to the management of housing delivery. An
approach, it is said, that has manifestly failed. The solution to
this, according to the Conservatives, is to abandon housing targets
set down by the Regional Spatial Strategy and return to housing
numbers being set down at the local level.
Following these papers, Caroline Spelman has written to the
leaders of Conservative controlled local authorities and all MPs,
setting out her position and to clarify planning policy. She
confirmed the abolition of regional planning but went further than
she had previously, stating that local planning authorities need
not rush ahead with the implementation of controversial elements of
RSSs.
So what does this mean? There are clearly potential legal issues
around local planning authorities placing emphasis on a shadow
minister’s statement of intent in relation to planning policy.
Initial indications are that local planning authorities are not
doing this, a position which we consider entirely correct. However,
they are turning their minds to the implications of a Conservative
victory and how this would affect planning policy.
Some of the concerns voiced include how planning policy and
decisions made in conformity with local planning policy will take
account of regional issues if regional planning is effectively
abandoned. Who will make the decision on important sub regional
infrastructure and distribution of housing within the regions? Will
local planning authorities who want to resist delivery of housing
be able to? There are no clear answers to these questions, but if
the Conservatives get into power they will have to give further
consideration to them.
Whilst there is some consensus over the lack of democratic
accountability of the Infrastructure Planning Commission (IPC),
there are also concerns over the lack of ability to deliver
important infrastructure projects within a timely fashion under the
current system. The IPC was designed to solve this issue and one
questions whether the Conservative suggestion of transferring
matters to a major casework unit with the Planning Inspectorate
will work. First of all, there will be problems in initially
replacing the IPC with the Planning Inspectorate within the
existing statutory framework. It will not simply be a case of
replacing references to IPC within the Planning Act 2008 to the
Planning Inspectorate, as the Planning Act provided a statutory
framework for the establishment of the IPC itself and this would
not be suitable for the Planning Inspectorate. However, the most
important feature of the IPC was that development was to be
considered against the National Policy Statements which effectively
establish the principle of development if it met certain criteria,
hence speeding up the decision making process. This would lead to
greater certainty over the ability for the IPC to determine any
applications but would not necessarily transfer over to the
Planning Inspectorate.
There is no certainty that the Conservatives will get into
power, although it looks extremely likely on the basis of recent
polls. It is less certain what detailed Conservative planning
policy would be, given indications that there is not necessarily a
clear consensus within the Conservative party itself. What is clear
is that planning policy will certainly change should the
Conservatives get into power; one can only hope that it is a step
forward for the delivery of development and not a step
backwards.
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The content of this update is provided for the purposes of general
interest and information. It contains only brief summaries of
aspects of the subject matter and does not provide comprehensive
statements of the law. It does not constitute legal advice and does
not provide a substitute for it.