Best Laid Plans: Can the planning system cope with the unexpected?

Last week, the ground literally disappeared from under my feet. A sentence which sounds far more dramatic than it actually was – the steps into my dentist’s office broke as I was climbing them* – but it got me thinking about the curveballs that life can throw at you, and how our planning system copes (or fails to cope) with them.

Developments that are going through the system at the moment are facing a barrage of unpleasant surprises. The cost of materials are skyrocketing, there are labour shortages on sites; and that is before we get into the usual hazards of the trade – such as contamination risks or discovering the buried remains of a circus elephant whilst digging foundation trenches.**

As development seems to be becoming increasingly uncertain, however, the planning system appears to be headed in the opposite direction, becoming increasingly rigid and inflexible. The planning application process is becoming increasingly front-loaded. Local validation lists are getting longer, and pre-application engagement with local planning authorities is now heavily encouraged. As this excellent report by Lichfields points out, viability testing is now intended to be carried out as part of the Local Plan process, and only revisited at application stage if there has been a material change of circumstances.

Despite national planning guidance discouraging the practice, it is not unusual for planning permissions to come with numerous pre-commencement conditions – that need to be dealt with before you can start on site. The time it takes to discharge these conditions is lengthening (for reasons I will come onto in a moment), whilst some local authorities are considering shortening the life-span of planning permissions, to encourage developers to implement permissions more quickly.

Once permission has been granted, there are limited options available for changing a scheme. If the change that is required is very minor, then a non-material amendment application can be made, via s.96a of the Town and Country Planning Act 1990. Anything larger would either require either a new application or a s.73 application - to vary a condition on the face of the original permission. Whilst s.73 applications are extremely useful, there are limits to what they can achieve. S.73 Applications cannot:

• amend the description of development on a permission;
• make changes which go beyond, or contradict, the purpose of the original grant of planning permission; or
• make changes that do not involve amendments to conditions.

As such, whilst they may assist if, for example, you need to change the type of timber cladding approved for a scheme, because you can no longer source the original materials, it will not help if you want to change your development from a supermarket to a car showroom*!

Given the limitations of s.73 and s.96a applications, it is often better for a developer if they can build flexibility into their permission from the start. There are a number of ways to achieve this, depending on the circumstances, such as:

• allowing flexible uses for commercial units,
• not including dwelling numbers or unit mixes in the description of development (and restricting them by condition instead), or
• Making use of master plans, perimeter plans or phased developments, that allow changes to be made to the later phases of a scheme

All of these options are, however, dependent on the local planning authority having the time and ability to work with the developer, so that they can be satisfied that the flexibility is required and adequately protects the local authority's interests. Unfortunately, the current level of resourcing in many councils means that this is often not the case.

Just how difficult things can be for local planning authorities has been starkly illustrated by a recent Planning Advisory Service review of services at Tandridge District Council. The review highlights issues of under-resourcing, low morale, and inadequate IT support, which (anecdotally, at least) seem to be depressingly common.

This may all seem rather bleak, but it says an awful lot about the ingenuity of developers, and the dedication of planning officers, that the system is still moving, despite all of the hard work and hurdles that are being thrown in the way. Planners of all types, be they inhouse or consultancy, in private practice or in the public sector, are all working towards the same goals - namely creating well planned, functioning communities. The level of commitment that I see from all parts of the profession, on a daily basis, is remarkable. The individual efforts of developers, planning officers, consultants and, yes, even the lawyers, on a daily basis are the reason the system continues to work - despite its chronic under-resourcing and increasing complexity.

So, to return to my original question, can the planning system cope with the unexpected? From my own experience, the answer is 'yes', but it would certainly be easier to do so if the system was better resourced...

*I mean, it was a bit dramatic; my leg ending up dangling over an eight foot drop into a basement, but it certainly isn’t in the league of ‘my car was swallowed by a sinkhole’.

**True story. Not mine.

*! or indeed change the mix or number of dwellings, if either of these details are in the description of development,