Do rushed planning reforms risk damaging the physical environment?

16 December 2020 | Investment

In this opinion piece, Elizabeth Osborne – a legal director at Ashfords Solicitors – asks whether the government’s proposed planning reforms will be dangerous to the physical environment.     

The government’s White Paper on planning reform – “Planning for the Future” – was published in August to much interest from the property industry  This was understandable, given the aim set out in the Prime Minister’s foreword appears quite revolutionary:

The whole thing is beginning to crumble and the time has come to do what too many have for too long lacked the courage to do – tear it down and start again. Not more fiddling around the edges, not simply painting over the damp patches, but levelling the foundations and building, from the ground up, a whole new planning system for England. (Boris Johnson, Foreword to White Paper)

There is support from those in the industry who feel the planning system delays development and requires a root and branch review to create a faster, simpler system. On the other hand, many notes of concern have been struck by what in some areas of planning could mean substantial deregulation. A key area of such concerns has been the impact on the environment.    

The Law Society consultation response dated October 2 2020 stated: 

We welcome this consultation and the opportunity to engage with the complex and much-needed task of planning law reform. We support action to boost the economy following the Covid-19 pandemic, but hurried reforms will not be sustainable and would risk damage to both the physical environment and the overarching principles of planning. However radical planning reforms are, they should also be carbon net-zero compatible. The danger of reforming the whole system at once is the resulting uncertainty, especially in light of the impacts of the pandemic and the end of the transition period for leaving the EU….

Why, then, are the Law Society and others concerned? First, there are concerns about the impact of a new system of environmental assessment for planning applications, and proposals to abolish the requirement for sustainability appraisals of Local Plans. 

In respect of planning applications, the White Paper states:

The current framework – which include Strategic Environmental Assessment, Sustainability Appraisal, and Environmental Impact Assessment – can lead to duplication of effort and overly-long reports which inhibit transparency and add unnecessary delays…processes for environmental assessment and mitigation need to be quicker and speed up decision-making and the delivery of development projects. The environmental aspects of a plan or project should be considered early in the process, and to clear timescales.

In policy terms, the government plans to speed up the delivery of Local Plans by reducing the requirements for assessments that add “disproportionate delay” to the process. They propose to abolish the Sustainability Appraisal system and develop a simplified process for assessing the environmental impact of Plans. It is not clear, however, what that process might be.

The timescales which need to be built into a planning application to deal with environmental assessment requirements, and the time it can take to get a site allocated in a Local Plan, can be a source of great frustration for landowners and developers.  

Many within the property industry will no doubt welcome a streamlined process for planning applications with reduced timescales and duplication of effort. However, concerns remain about the lack of detail within the proposals and whether a “quicker, simpler framework” will result in reduced legal and environmental protection. Nor is it clear whether this would simply mean removing rules and procedures, to the detriment of the rigour of any assessment.

Another radical proposal is to zone land in England into three tiers, which are classified as:

Growth areas suitable for substantial development, and where outline approval for development would be automatically granted for forms and types of development set out in  Local Plan;

Renewal areas suitable for some development, such as “gentle densification”; and

Protected areas such as greenbelts and SSSIs where development would be restricted.

A major issue for the property industry is how long it takes for permissions to be granted. The White Paper states “this could halve the time it takes to secure planning permission on larger sites identified in plans” which would no doubt be welcomed.  

However, it is not clear when the environmental impacts, which would normally be assessed at outline stage, would now be assessed. Will there be a requirement for environmental assessment at the new reserved matters stage? Also, given that sustainability appraisals for Local Plans are to be abolished, will this have to be covered in the new “pared-down” environmental appraisal for local plans? Will, therefore, the new zonal planning system result in reduced control and therefore the potential for environmental damage?  

Finally, the White Paper is light on detail about how these reforms might contribute to meeting the UK’s net zero carbon commitments, stating:

We will facilitate ambitious improvements in the energy efficiency standards for buildings to help deliver our world-leading commitment to net-zero by 2050…Last year we consulted on our proposals to move towards a Future Homes Standard, which was a first step towards net zero homes. From 2025, we expect new homes to produce 75-80 per cent lower CO2 emissions compared to current levels…  

However, there is no further detail at this stage.  

So, do these planning reforms risk damaging the environment? Arguably yes, and for two reasons.  First, the proposals do not go far enough, particularly in terms of climate change. Secondly, they propose at worst a dismantling, and at best a streamlining, of the current system of environmental assessment, and detail is scant on how the revised system will work.    

However, it seems unlikely that they will be “rushed”.  There is, necessarily, more much more water to flow under the bridge before any of these proposals can be implemented. 

There will also be further legislation for the property industry to negotiate: the environmental assessment regime will be the subject of a separate consultation and the Environment Bill, currently before Parliament, will legislate for mandatory net gains for biodiversity as a condition of most new development as well as setting up a new independent environmental watchdog.  

*Elizabeth Osborne is a Legal Director in the Real Estate team at Ashfords Solicitors, a national provider of legal, professional and regulatory services. The law firm has offices in Exeter, Plymouth, Bristol, Taunton, London and Tiverton. 

This post has originally been featured in Property Investor Today.