Memorandum by Professor Howard Elcock
THE PLANNING GREEN PAPER OF DECEMBER 2001
1.1 Previous reform. The Green Paper begins
by stating wrongly, that the planning system has continued largely
unchanged since its introduction by the 1947 Town and Country
Planning Act. Richard Crossman initiated a radical revision of
the planning system as a result of the Planning Advisory Group's
work when he was Minister of Housing and Local Government between
1964 and 1966, which resulted in the Town and Country Planning
Acts of 1968 and 1971. These reforms, which included the introduction
of the present Structure Plans and Local Plans, were introduced
for many of the same reasons as those being given for the present
proposals: excessive delays and bureaucracy that were seen to
result from an excessively detailed planning regime: Present Ministers
appear to believe that the Crossman reforms were a failure, which
their present proposals are intended to reverse. If this is indeed
the case, then care must be taken not to repeat the mistakes made
then. If the Crossman changes were not a failure, the question
ought at least to be asked whether the system is at present sufficiently
broken to require radical fixing. The essential question is whether
fundamental change is necessary for a system which despite its
failures, has enjoyed many successes in protecting and improving
the environment and at least partially resolved the difficulties
of the 1947 system.
1.2 One effect of the 1968 and 1971 Planning
Acts, coupled with the 1973 reorganisation of local government,
was to increase the number of planning departments, because planning
functions were granted to both tiers of the two-tier systems of
local government introduced throughout England at that time. This
may have increased both bureaucracy and delays but it had two
substantial benefits. These were:
A pluralist planning system in which
no one planning authority or majority party on a local planning
authority could control the entire planning process. This might
render consultation and participation nugatory when planning powers
were exercised only by county and county borough councils. Unitary
planning authorities which are dominated by secure political majorities
and advised by confident professional officers, sometimes created
the kind of autocratic planning system denounced as "evangelistic
bureaucracy". These dangers were reduced by the introduction
of two-tier local government throughout England and Wales in 1973.
The development of two perspectives
on planning: a strategic view which could be taken by county councils
able to consider relatively dispassionately the needs of their
sub-regional areas without having to become involved in purely
local issues and disputes. The district and borough planning authorities
could discuss and resolve local issues concerning specific sites.
Both systems were "plan led", with the county councils
preparing Structure Plans and the districts or boroughs preparing
Local Plans, which allowed policies to be developed from both
strategic and local viewpoints. The result was a system in which
checks and balances inhibited the overriding of local views and
interests by either tier of local government.
However, the effect of the introduction
of the proposed Local Development Frameworks (LDF) and the abolition
of Structure Plans will be once more to make planning a unitary
local government function throughout England. The advantages of
this in terms of quicker and more coherent decision-making are
apparent but the loss of opportunities to express and negotiate
conflicting views about plans and planning applications ought
not to be dismissed out of hand in the current enthusiasm for
speeding up and simplifying the planning process. Increased speed
and efficiency may be achieved by re-establishing unitary local
planning authorities but this is likely to be achieved at the
expense of local democracy and participation.
1.3 Planning Inquiries. The other headline
issue addressed in the Green Paper: the excessive length, formality
and cost of planning inquiries, has also had a long historical
pedigree. Those groups who are opposed to the government's proposals
for replacing such inquiries with a Parliamentary procedure to
consider major infrastructure projects need to consider, therefore,
whether the public inquiry as at present constituted is worth
dying in the last ditch to defend.
1.4 The most fundamental problem with the
planning inquiry system is that the Secretary of State is under
no obligation to accept the Inspector's recommendations. Indeed,
in the words of Lord Justice Thankerton in the Stevenage case
in 1947, the Inquiry exists "only to inform the mind of the
Minister". Until 1958 the Minister did not even have to give
any reasons for overriding the Inspector's recommendations. If
a Parliamentary procedure were to be safeguarded against Ministerial
rejection of its decisions and against control by the Whips, it
would improve the value of the proceedings for the participants.
They could be more certain that if the Parliamentarians accepted
their case, their views would also be likely to prevail in Whitehall.
1.5 The reforms of the planning inquiry
system introduced in 1977 remedied these defects to some extent
in the case of the vast majority of planning inquiries, because
Planning Inspectors were able to determine most planning appeals
themselves. This eliminated the time needed for a Ministerial
decision upholding or rejecting the Inspector's report to be taken,
which has been a major cause of planning delays. It also removed
the possibility of the Minister rejecting the Inspector's recommendations,
thus making such inquiries more credible quasi-judicial procedures.
It has also facilitated the holding of relatively informal local
planning inquiries into the vast majority of planning appeals.
1.6 It might be possible to reduce the length
and complexity of many public inquiries by barring legal representation
at them but clearly this would not be appropriate for the largest
inquiries into major proposed developments which are contested
among major organisations, such as the Heathrow Terminal 5 Inquiry.
In these cases, the Green Paper proposes the substitution of a
Parliamentary procedure for the present public inquiry procedure,
at paragraph 6.4 and following. A more satisfactory alternative
to the present system is needed, especially where a large organisation's
proposals are being resisted by small and relatively poorly funded
environmental organisations such as CPRE, Friends of the Earth
and Transport 2000, as was the case at the Sizewell B Inquiry.
However, such decisions ought not to be made by whipped majorities
subservient to the Executive in the House of Commons. If a Parliamentary
procedure were partially to replace public inquiries into major
developments, it should be conducted through a procedure that
does not entail the application of the party Whips, such as a
Select Committee investigation to which the parties to the decision
could make representations.
2. FURTHER GENERAL
2.1 Two general issues must be borne constantly
in mind. First, the essential purpose of planning is to reduce
uncertainty about the futurenot only for planners themselves
but also for developers, property purchasers, statutory undertakings,
transport operators and many others. A virtue of the present "plan
led" system is that all these and other interested parties
can gain a relatively clear idea of where particular kinds of
development are likely to be permitted or encouraged to take place,
by consulting Structure and Local Plans. However, plans need to
be updated as circumstances and policies change. All planning
procedures now include provisions for the monitoring, review and
amendment of plans and the need to do so is generally acknowledged
by the planning profession.
2.2 The second feature of the present planning
system that should not be lost sight of is that the process of
preparing Structure, Local and Subject Plans produces benefits
in terms of improved information, communication and co-ordination
not only for local planning authorities themselves but also among
other private and public sector agencies. Demographic work undertaken
for plan preparation may reveal previously unnoticed developments
or problems, such as growing concentrations of elderly residents
in particular locations who are likely to require increased social
and health care provision. Plan preparation thus becomes a collective
learning process which produces benefits beyond those which may
result from the resulting documents, causing Tony Eddison to suggest
that "planning is more important than plans".
2.3 A final general problem is that because
of their large size, few of the present English local authorities
can be regarded as being in any sense community councils or as
able to represent community opinion, because they are too large
to do so. Most of them are combinations of communities, which
in some but by no means all cases have their own community governments
in the forms of parish or town councils which are consulted as
a matter of course on plan preparation and planning applications.
Although the powers of these councils are very limited, their
main value to the planning process is their ability to represent
community views and interests to the regional, structure and local
3. SPECIFIC COMMENTS:
3.1 Paragraph 4.1 usefully summarises the
roles of plans as being "to describe the intended use of
land in an area and to provide an objective basis for the consideration
of planning applications", which might further be summarised
as reducing uncertainty about the future. The defects raised in
paragraph 4.5 are significant but many of them were also raised
during the Crossman review in the 1960s. If they were not resolved
then, one must ask whether the present proposals are likely to
fare any better. The proposed Community Strategies may enable
local planning authorities to take a broad brush view of the future
development of their areas but they need to maintain both the
strategic and the local focal points of planning, especially if
both plans are to be prepared by the same council. However, the
question raised earlier as to whether the present local authorities
can be in any true sense regarded as community councils must cast
doubt on their ability to develop truly community perspectives
in preparing these plans.
3.2 The proposal to restrict the core policies
of Local Development Frameworks to land use issues is unduly restrictive
and is redolent of the previous Conservative Governments' planning
reforms in the early 1980s. Transport in particular must be considered
alongside land use and other social, environmental and economic
matters are inextricably entwined with land use considerations.
They must therefore be discussed as the essential premises for
the spatial policies proposed in the Framework documents and related
to the new Community Strategies.
3.3 In paragraph 4.20 the need continuously
to update the LDF is desirable but this process must not become
so demanding that the local planning authority is unable to undertake
other work or to process planning applications with due dispatch.
The three-year revision period proposed in paragraph 4.31 is probably
too short, for exactly this reason.
4. SPECIFIC COMMENTS:
4.1 The proposals for strengthening the
role of regional planning contained in paragraph 4.42 and following
are welcome but at present there are no elected bodies at the
regional level which can legitimate the proposals made by the
professional planners. These must include assumptions about the
economic, political and social values to be followed in developing
regional strategies. Some members of these regional bodies are
councillors nominated by their authorities and hence indirectly
elected but they cannot exercise the authority conferred by direct
election. Many regional planners are concerned that the decisions
they are responsible for making, which affect the long term spatial,
economic and social development of their regions, cannot be tested
against and legitimated by public opinion as represented by elected
assembly members. The Government is preparing a White Paper on
elected regional government in England that may address this weakness
of the present system.
4.2 The proposed development of the present
Regional Planning Guidance into the Regional Spatial Strategies
proposed in paragraph 4.44 and following, is welcome. It should
strengthen regional environmental and social protection from the
adverse consequences of development but they should remain the
property of the regional authorities which have prepared them,
especially when some of them possibly become directly elected
bodies. They must be subject to Ministerial approval to ensure
that they comply with national policies but they should not then
become statements of Ministerial policies for the region, as is
the case with the present Regional Planning Guidance documents.
However, such regional strategies will lack democratic legitimacy
unless their preparation is supervised by elected regional assemblies.
4.3 In view of the need for sub-regional
strategies in many areas (para. 4.49 and following), coupled with
the development of sub-regional policies including Sub-Regional
Partnership Areas as part of the Regional Economic Strategy process,
the proposal to abolish Structure Plans should be dropped. Structure
Plans are now well established sub-regional strategic plans and
an extensive methodology has been devised for their preparation,
including a focus on key issues and means to cope with issues
which cross county borders. Their scope might be modified in order
to encourage councillors and officers to concentrate on the major
issues and most important sites or areas within sub-regions. They
can also ensure co-ordination of plans with other remaining county
responsibilities, including mineral working and waste disposal.
They should be approved by the Regional Planning Bodies, thus
removing a further cause for delay because they would no longer
need to go to Ministers for approval, with the resultant delays
rendering them out of date before they have come into force. It
would be quicker and more efficient to modify an existing process,
to which councillors, officers and participants have become accustomed,
than to abolish it and replace it with a new and untried process
of sub-regional planning.
5. NATIONAL PLANNING
5.1 The proposal to simplify the present
plethora of Planning Policy Guidance Notes made in paragraph 4.59
is welcome. The regional planning bodies should be given more
discretion. However, the substance of the environmental protection
guaranteed by the present PPGs, with their emphasis on sustainable
development, needs to be maintained. The Royal Town Planning Institute
and CPRE have argued for the creation of a National Spatial Framework,
into which many of the present PPG Notes could be consolidated.
5.2. The LDFs should be approved at the
regional rather than national level if they conform to the Regional
Spatial Strategy, as Local Plans are now approved by County Councils
if they conform to their Structure Plans. They should not then
require Ministerial approval, a major cause of delay in approving
plans. This was a major reason underlying the 1968 reforms of
the planning system, which laid down that the Minister should
only approve Structure Plans, hence removing many other plans
from delays within the Ministry.
6.1 Again the need for a quicker, more user-friendly
set of procedures as proposed in paragraph 5.1 is welcome but
this ought not to be achieved by the undue truncation of public
consultation processes. These are important for building local
consents, without which proposals may meet with lengthy and stubborn
resistance, perhaps including lengthy court cases or even public
6.2 The more extensive use of electronic
media proposed in paragraph 5.12 and following is particularly
welcome in this context, because they should make responding to
consultations easier and quicker. However, e-planning is confined
to those with access to computers and the Internet and this does
not yet include anything like the entire population. Only around
45 per cent of the people have access to computers and the Internet.
Hence, it may result in discrimination against the information
poor, so alternative means of participation must continue to be
6.3 The strict conditions proposed for the
establishment of Business Zones in paragraph 5.36 and following,
within which planning regulations will not operate, might have
rendered them less unacceptable to environmental and conservation
groups such as CPRE and Friends of the Earth but they still regard
them with considerable hostility. They are welcomed by business,
although there is evidence that business people do not regard
planning as the most important obstacle to development. The effect
of earlier such initiatives introduced by the previous Conservative
Administrations was to cause existing employers to move their
plants into Enterprise or similar Zones, rather than attracting
new employers to them. Similar arguments may apply to the permitted
development rights proposed in paragraph 5.45 and following. It
is by no means clear that the exemption of most agricultural buildings
from the present planning regime has been beneficial to the rural
6.4 The recognition of the importance of
the democratic and representative roles of councillors in paragraph
6.21 is welcome, especially since in planning they are often faced
with issues of considerable complexity. The discipline of having
to explain complex issues to lay representatives may be tedious
for technically qualified officers but it is vital to the effective
working of representative democracy. This needs to be extended
to the regional level if the planning roles of regional agencies
are to be increased as proposed in this Paper.
6.5 The statements about better skills and
more user-friendly systems contained in paragraph 6.38 and elsewhere
are welcome but planning is in part a regulatory activity which
may obstruct potential developers' intentions by the refusal of
planning permission or the imposition of more or less onerous
conditions for approval. It is also in part an enforcement activity,
which may require recalcitrant developers to remove buildings
or appurtenances for which planning permission has not been granted,
as well as to enforce building control and other regulations.
As with any other public service concerned with regulation and
enforcement, there is therefore a limit to the extent to which
planners can be user-friendly.
7. SUMMARY AND
7.1 The Government's Planning Green contains
much that is welcome but there are also major deficiencies. It
proposes a major upheaval where one is neither necessary nor desirable.
It would be cheaper, quicker and easier to modify the existing
system than to impose a radically new one.
7.2 Actions recommended on the basis of
the above arguments include the following:
The number of plans requiring Ministerial
approval should be reduced to the absolute minimum.
Major national infrastructure proposals
should be considered by a Joint Select Committee of both Houses
of Parliament, with full investigatory and interrogatory powers,
not controlled by the Whips.
The proposed Regional Spatial Strategies
should become statements of regional policy, preferably approved
by elected representatives.
County Structure Plans should be
retained but their scope and functions could be modified as the
Regional Spatial Strategies are developed.
Local Development Frameworks should
be prepared on the basis of existing local plans but should be
flexible and subject to frequent review and amendment. They could
be approved either by County councils if Structure Plans are retained,
or by Regional Planning Bodies.
Local Business Zones are unlikely
to be effective and should not be proceeded with.
Mechanisms for public consultation
and participation should be extended. In particular, steps should
be taken to encourage individual as well as group participation.
The importance of elected representatives
at all levels of the planning system should be recognised as vital
to securing consents.
Both participatory and representative
democracy require expenditure of time. Critics of delays resulting
from such democratic procedures should recognise that if consent
is obtained through participation and elected representatives,
co-operation in implementing developments is more likely to be
Howard Elcock AcSS
University of Northumbria at Newcastle