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An intensely political piece of positioning


By Julian Seymour and Duncan Flynn

On 5 December 2022, Michael Gove wrote to all councils in England. The letter has proved to be something of a bombshell, setting out potentially dramatic changes to the planning system and a series of consultations.
Just a day after the letter, Planning Committees were already deferring applications on allocated sites pending further “information from Michael Gove”.

What’s in the letter?

Many more learned planners and lawyers have provided advice on the contents of the letter, so we’ll confine ourselves to what it might mean in local political terms.

1. Housing Need

Both candidates in the Conservative leadership race took aim at the “top-down targets” which were supposedly imposed on local authorities against their will. Momentum increased when a group of backbench Conservative MPs including a number of former Cabinet Ministers proposed a series of amendments to the Levelling Up & Regeneration Bill, such as the removal of the housing targets. Therefore, it is no surprise that Gove has sought to dilute the impact of these targets by stating that they will be an advisory “starting point”. However, what many Conservative MPs will not fully appreciate is that the housing need assessment is already only advisory.

The question here is then is what advice will go to the Planning Inspectors who have been at the forefront of determining what is a genuine constraint to building the housing that a local authority and the community it serves has been assessed to need.

It seems to us that Inspectors will read Gove’s letter and the accompanying Written Ministerial Statement and soften their approach to local authorities with national parks, heritage restrictions and significant amounts of Green Belt and recalibrate their approach accordingly. In fact, the letter goes on to say that “we will be clear that local planning authorities are not expected to review the Green Belt to deliver housing.”

The large number of councils already holding off on progressing the adoption of their emerging Local Plans will be encouraged by these measures and even more are likely to put their Plans on hold before the next round of local elections in May next year pending more information from the Department.

2. Five-year housing supply

Under the changes local authorities will no longer be required to have a rolling five-year housing supply – where Local Plans are up to date. Developments outside the envelop of the Local Plan will no longer be able to count as under delivery as part of the tilted balance, making speculative development, particularly in Green Belt authorities even harder.

These changes will reduce pressure on Planning Committees to make positive recommendations in the short term as the consequences are no longer as stark. There is deliberately more emphasis on plan making and securing an allocation in the plan in the first instance, and more pressure on communities to force their local authorities to get a plan in place – except ….

3. Local Plan transitional arrangements

Where Plans are in an “advanced stage of preparation” local authorities will be subject to transitional arrangements. In effect this change allows authorities which have developed plans based on current housing numbers to start their plan processes again using new numbers.

In practice that could mean all the authorities which currently have their plans on hold will reassess their plans from the ground up. In the case of Welwyn Hatfield, which has spent £10m and five plus years in examination, the Inspection may extend to a record breaking seven years.

4. Rewards for previous over-delivery

Gove has also given some hope to areas which feel that they have provided more homes than they needed to in recent years, hinting that this could be taken into account in future plans. This case has been made by authorities such as Basingstoke & Deane and Wokingham in recent months and years – both of which are grappling with drafting new local plans in the face of tight elections next year. It is no accident that local Conservative MPs, Maria Miller and John Redwood, were both at the forefront of the backbench campaign to abolish housing targets.

What is not clear from the one sentence which covers this in the letter is how far back in time this over delivery covers. For example, Basingstoke has absorbed a huge number of homes over the last 70 years – but that is exactly what was intended when it was set up as a new town.

5. Design Codes

The Levelling Up Bill is introducing a measure to force local councils to produce a design code for the same area as the Local Plan as a means of ensuring that new development is of a higher quality than has gone before. These codes are due to cover height, density and massing, in order to provide the local community with more policy to work with to force developers to build in accordance with local requirements. In particular, design is a frequent focus of the Conservative Government with a succession of Ministers prioritising the importance of building beautiful and citing the likes of Poundbury as exemplar development.

However, resources in councils are already stretched and the skills to produce these design codes simply don’t exist within local authorities at this point. This could lead to further delays and outsourcing.

6. Character / build out

As leading Planning barrister Zack Simons of Landmark Chambers told the LPDF at its annual policy conference just a week ago, the permission goes with the land. But the consultations on the character of the developer and the opportunity to turn down planning permission for developers who don’t build out at rates expected by the authority could change that.

These are just consultations at the moment and may simply be an opportunity to buy-off some of the Levelling Up Bill rebels and win a few cheap anti-developer headlines, but it is currently uncertain where this may lead in the future.

What prompted the letter?

Ostensibly, the changes were triggered by the Theresa Villers’ proposed amendments to the Levelling Up & Regeneration Bill. Her amendments quickly attracted the support of around 40 Conservative MPs – in effect, enough to overturn the Government’s majority and force the new Prime Minister to rely on a gleeful Labour Party which has already been attacking Rishi Sunak for his weakness amongst his colleagues and his propensity to u-turn at the slightest hint of backbench disquiet.
Underlying these amendments is the fear of many Conservative MPs of the forthcoming local elections in May 2023 which are likely to see big losses for the Conservatives in rural and suburban districts across the UK. Tory voters in these areas have long been saying that their areas are “full-up” and that infrastructure, be that roads, schools or GP surgeries, has not kept pace with development.

These communities have been increasingly turning away from the Conservatives at local level with former Conservative bastions such as Guildford, Uttlesford and South Oxfordshire – swept away by combinations of residents’ groups explicitly opposing development and political parties such as the Liberal Democrats and Greens who routinely campaign on anti-development platforms. If recent local election results were not enough, by-elections for Parliamentary and council seats across England last week showed the depth of discontent with the Government.

This letter is a world away from the 2019 Conservative Manifesto commitment to “deliver the housing people need” and “continuing to increase the number of homes being built”. Instead, it refers back to the Prime Minister’s words during the summer, which are presumably a reference to Sunak’s failed campaign to become the leader of the Conservative party during which he made a number of commitments to prevent building on the Green Belt. In these announcements, we can also see further evidence of a clear political strategy to prioritise the economic interests of pensioners (who vote) who are largely resistant to further housebuilding at the expense of younger people who are desperately searching in vain for opportunities to ascend the housing ladder.

Who is paying?

Of course, all the extra resources required to police the development industry has to be paid for. In a slight of hand Gove suggests that this is the reason for the increase in planning fees – in effect saying that developers will be paying to police themselves. However, we should not expect developers to warm to these proposals and instead they are more likely to be met by a chorus of disapproval among those who work in the built environment sector.

An intensely political piece of positioning