Tag Archives: Planning Convention 2015

Who decides and interprets planning policy … planners or lawyers?

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Image from Flickr user Sebastian Niedlich, licensed for reuse under a Creative Commons License

Image via Flickr user Sebastian Niedlich, licensed for reuse under a Creative Commons License

By Morwen Johnson

Nathalie Lieven QC, barrister at Landmark Chambers, spoke at the RTPI’s 2015 Planning Convention on the shifting relationship between planners, policymakers and lawyers. Nathalie regularly appears at public inquiries and planning challenges in the High Court, appearing for both developers and local authorities.

Discussing the massive upsurge in litigation in planning, personified in the creation of the Planning Court in 2014, Nathalie suggested there had been a power grab by lawyers over the planning system in the last few years. She highlighted two main reasons: the decision of the Supreme Court in Tesco v Dundee City Council [2012] UKSC 13, and the introduction in England of the National Planning Policy Framework (‘NPPF’).

Recent shift in power

Prior to the Tesco case, interpretation of planning policy was seen as the task of the decision-maker. Cases only went to court if this interpretation was seen as ‘unreasonable’. This approach makes sense if you consider that planning policy tends not to have the level of semantic detail that is expected in law, and is also a recognition that application of policy can be different in different contexts.

The Supreme Court ruling however was that interpretation of policy in the case was a matter for the court and policy should be interpreted objectively. The aim may have been to create intellectual clarity and better decision-making, but the ruling has coincided with the introduction of NPPF, which is in some parts obscurely worded and also contradictory. With many development plans out of date, NPPF has become the critical determining document in planning appeals.

Particularly in residential housing appeals, the system now relies on both the interpretation of words in the NPPF and also previous rulings by High Court judges as to what the words mean. In respect of development planning, plans now get limited scrutiny and the role of the court also becomes more important. In the short-term therefore, power over planning decisions has shifted to the centre, in marked contrast to the Westminster government’s support for localism and devolution.

The role of the court is creating, in Nathalie’s words “a straitjacket for decision-makers, which limits their ability to apply policy flexibly”.

How local authorities can regain the balance of power

She suggested however that it is worth remembering that in the Tesco case, the Supreme Court was careful to say that the issue related to the application of policy to a given set of facts, rather than interpretation of policy generally.

Planning authorities can therefore turn the ruling to their advantage by drafting planning policies in a hard-edged way. As policies need to be applied in a consistent and objective way, the clearer the development plan, the less room for appeal.

Morwen Johnson is Managing Editor of the Scottish Planning and Environmental Law Journal, which is published by Idox.

More information on the journal and how to subscribe can be found here.

The new politics for planning

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rtpi brochure coverThe 2015 RTPI Planning Convention was held last week and was attended by over 450 people keen to discuss the future of the profession and the planning system following the UK general election. Just two days after the conference, the government published its ‘productivity plan’ setting out wide-reaching changes to planning, and highlighting the importance that is being placed on planning as a channel (or barrier) to economic growth.

While Idox were at the conference exhibition in order to demonstrate the new i-Apply combined online planning and building control submissions service, our Knowledge Exchange team were at the convention itself.

A call to arms

During the day there were a range of sessions exploring the delivery of planning at different spatial scales as well as the need for planners to engage with other professions and policy areas. Janet Askew, RTPI President, argued that we “must persuade people that planners are good for places” while Eugénie Birch issued a rallying call, saying “we have a chance to advocate, a chance to be bold”.

Probably the session that created the most buzz was Waheed Nazir describing the journey that the planning team in Birmingham City Council have been on. The need for strong, visionary leaders within the profession, echoes the conclusion of a recent OECD Forum on local economic development which explored the new skill set needed to be a good local leader.

Waheed suggested that “process has overtaken the creativity of the profession”. Planners need to “liberate themselves from well-intended bureaucracy”. In terms of providing leadership, two key aspects are setting the vision and then enabling delivery. By trusting staff and empowering them to deliver the agenda which had been agreed, Waheed felt that they had been able to do things which wouldn’t have been possible otherwise. The Curzon masterplan and Birmingham’s Big City Plan were showcased as examples.

New ways of planning

In the afternoon, the practicalities of current planning were explored in sessions on strategic planning and neighbourhood planning. Neighbourhood planning was identified as a powerful set of tools but audience questions suggested some disquiet. Neighbourhood plans, where they are being developed, seem to support stronger community identity but are still operating in their own bubble. As the spatial scale increases, the level of public participation in planning decreases – so the learning from neighbourhood plans needs to be fed back into Local Plan development.

Planning for our children’s children’s children

In terms of strategic planning sessions, there was a big emphasis on thinking long term. Pam Ewen talked about whether we do enough long term, strategic thinking. Do we think big enough or take enough risks? We don’t just create planning documents as an end in themselves – they are investment and marketing tools to galvinise action. Reflecting on the theme of leadership, Pam also highlighted the need to see developing a strategic plan as a project in its own right; clear direction, objective and communication were vital to the plan’s success.

This was echoed by Richard Blyth who also emphasised the need for cross-boundary cooperation, which brings mutual benefits and the need for greater collaboration across housing, health and education.

Challenges for the profession

The final session looked at the politics and challenges facing the profession. Michael Edwards highlighted that planning is a profession committed to serving the whole of society. Planners have to work within the policy framework, but take account of the wishes of society and strive to reflect on the good and bad plans and outcomes.

Leading the placemaking agenda

Overall the day tied planning into wider cross-cutting issues such as sustainability and wellbeing. Vincent Goodstadt, a past President of the RTPI, summed up when he said we “need a broader, proactive view of planning to help maximise its economic and social value”. What was surprising therefore was how little reference was explicitly made to devolution.

If the planning profession is really to lead and shape the debate on the future approach to place-making then this needs addressed. Otherwise the risk is that riding on the coat-tails of the economic agenda (especially when the government is inferring in its reforms that we need ‘less planning’ to enable growth) may take the planning system in a direction that planners would rather not go.