Friday, 21 June 2019 12:01

Scotland's Planning Bill - who will "frontloading" work for?

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What changes has the Bill made to Scotland’s planning system?

The changes in the approved bill are mainly in the detail of the system, not its overall architecture. Notwithstanding Ministerial claims that his Bill is “a radical shake-up” of planning legislation, continuity was signalled from the outset by the decision to amend the 1997 Planning Act (which had been further amended in 2006) rather than start with a clean piece of paper. Thus, there is still a National Planning Framework, statutory development plans with provisions for public consultation, a requirement to seek planning permission for development, and rights of appeal against planning authority decisions for developers. All comfortably familiar, and broadly neutral in terms of the power relationships that have led to a loss of public confidence in the planning system.

The system has been “tweaked” by the Bill in the following main ways:

  • A “community body” may prepare a Local Place Plan (LPP), for “the development or use of land”. An LPP must “have regard to the development plan and the National Planning Framework and “other matters” that may be prescribed. A planning authority must “take account of” a LPP when preparing its development plan.
  • There is a requirement for planning authorities to make contact with schools, youth councils and youth parliament representatives when preparing a local development plan. Gypsies and travellers and disabled persons also now need to be consulted.
  • Introduction of an Infrastructure Levy, payable to the local authority, to fund or contribute to infrastructure projects.
  • The National Planning Framework (NPF) will only be reviewed every ten years, but must now be approved by Parliament.
  • Replacement of city-region Strategic Development Plans by Regional Spatial Strategies, not restricted to the city-regions.
  • Creation of Masterplan Consent Areas, essentially replacing the little-used provision to declare Simplified Planning Zones.
  • Replacement of Main Issues and Monitoring reports by an Evidence Report that will be reviewed by a “gatecheck” process as an input to preparation of a development plan.
  • Creation of a National Planning Improvement Co-ordinator to monitor the performance of planning authorities and give them advice.
  • A requirement for training of councillors involved in planning.

How did we get here?

The Bill began after lobbying by housebuilding companies, whose lament is echoed in the Scottish Government’s Financial Memorandum on the Bill: “delays and uncertainty in the planning system are considered to cause significant costs to the development industry, in relation to holding land, business planning and cashflow as well as keeping staff and contractors available.” Their angst became conjoined with the Scottish Government’s desire to reduce the costs of funding the planning service, which had suffered a 40% real terms cut since 2009.The original intention was that the Bill would yield further savings over a ten year period of £1,026, 231 for the Scottish Government, and between £22,587,5900 and £33,133,500 for planning authorities . In short, the original motivation for change predominantly was to financially benefit developers, while cutting public investment in the planning service.

A number of factors complicated progress. The Scottish National Party (SNP) was a minority government, and while it could generally rely on the support of the Green Party to carry through its programme, on planning the priorities of the Greens differed significantly from those of the Government. Secondly, a decade of austerity, during which local authorities scaled back all but their most essential activities, meant that people came to realise that unless councils were legally required to do something, they would not do it. In addition, the Scottish Government’s overarching priority of “sustainable economic growth”(the definition of which does not mention “environment” or “conservation”) had left many local protestors and their local councillors frustrated as controversial developments were approved on appeal to Ministers.

So when the Planning Bill began its parliamentary progression it was given a rough ride. During its passage through the Committee stages Members of the Scottish Parliament (MSPs) from all opposition parties carried over 200 amendments. The bulk of these added to, rather than “streamlined” the process of making a plan, and/or frustrated the wishes of the SNP, e.g. by inserting a Purpose for Planning, or rejecting the proposal to scrap regional scale Strategic Development Plans.

What happened next?

There was substantial lobbying as we approached Stage 3. The Law Society of Scotland expressed concern that the Bill as amended would be ”unworkable”. The Royal Town Planning Institute (RTPI) fretted that there were 66 new and unfunded duties to local planning authorities with a further 25 responsibilities placed on the Scottish Government . The Scottish Property Federation called on all political parties to work together to “fix the Bill” that was “no longer fit for purpose”  The Minister responsible for the Bill, Kevin Stewart MSP, in his folksy way cheerily described the situation as “a guddle”.  

In the end such all-party cooperation proved unnecessary, as some accommodation was arrived at which saw the largest opposition party in the Parliament, the Scottish Conservatives, rescue the Minister and his Bill. Thus what emerged after Stage 3 was approval of a Bill closer to the original intentions, despite the combined votes against it by Scottish Labour, Green and Liberal Democrat MSPs.

Points of Contention

At the outset the Government resisted the proposal that the Bill should set out a Purpose for Planning. This was something that I, amongst others, was urging. The Minister’s case was that it should be left to him, through planning policy guidance, to give effect to a purpose. After losing the argument, he conceded that the Bill would state a purpose. But what purpose? The wording proposed by the RTPI was relatively uncontentious: ““manage the use and development of land in the best long term public interest”. It did not set the bar very high, nor did the requirement to contribute to “sustainable development”, which might have meant something 20 years ago, but has since been so widely appropriated as to lose much of its meaning. In addition, deliver of the Scottish Government’s National Outcomes was added. However, there was also an addition that I had helped craft to connect the purpose to international obligations, notably the United Nations’ Sustainable Development Goals and the New Urban Agenda, both documents that the Scottish Government has supported and which apply to its actions. In the end, the Conservatives and the SNP voted to delete these more explicit criteria, and also to limit the application of the Purpose to the NPF and Development Plans, thereby excluding it from development management. This is patently illogical – to have a purpose for planning that only applies to part of the planning system. It potentially undermines the idea of a “plan-led system”, by driving a wedge between development control and the plan on which that regulation is supposed to be guided.

The very idea of a purpose had been opposed by the Law Society of Scotland on the grounds that it “may lead to a burdensome decision making process and could give rise to the potential for legal challenge.” It will be interesting to see if this challenge is forthcoming, and from whom. Similarly, the Scottish Property Federation opposed the idea of having an explicit purpose. Thus the fact that a purpose was included, but restricted scope and application, suggests that there was a compromise.

The abolition of regional scale planning as proposed in the original Bill was one way that the government sought to save money, some £2.5M in all over ten years. In this it was following the example set in England where the Conservative / Liberal Democrat Coalition Government from 2010abolished Regional Spatial Strategies. In the end, this was another aspect of the Bill on which the Scottish Government back-tracked, responding to the lobbying of the RTPI rather than of the Scottish Property Federation. Arguably this was the most significant concession by the government, even extending the preparation of Regional Spatial Strategies to areas beyond the city regions. Maybe in this respect at least, they had been persuaded that planning could play a positive role.

Another area of controversy and lobbying was regulation of short-term holiday lets. The exponential growth of commercial investment in buying and letting properties on platforms such as Airbnb has caused concern, particularly in Edinburgh (as shown in a report that I wrote)  and tourist hot spots in rural Scotland. The proliferation of these properties is reducing the supply of affordable housing, and in tenements it affects the quality of life of permanent residents. Green MSP Andy Wightman in particular has campaigned to bring such commercial conversions clearly under planning control as a change of use. On the other side, as Wightman revealed in a tweet, there was lobbying against regulation by the UK Short Term Accommodation Association, the Association of Scotland’s Self-Caterers, Halogen Communications, and Airbnb. The Conservatives and SNP voted together to remove Wightman’s successful Stage 2 amendment with one that will allow planning authorities to declare “short term let control areas” in which use of a dwelling house for a short-term let would be a material change of use. The effect of this, of course, is by implication that out with such areas the same “material change of use” would not be a “material change of use”, and therefore would not require planning permission. As with exempting development management from the purpose of planning, this is manifestly illogical – a change of use is a change of use. What might appear at first sight to be a compromise, decentralising decisions to local planning authorities, effectively gives investors and developers the upper hand, at least until some time after the Royal Assent and until planning authorities can designate their zones.

Perhaps the most rancour in the 3-day debate came with discussion of rights of appeal. In the lead up to the 2006 Planning Act the SNP (then in opposition) had pressed the case for Third Party Rights of Appeal, only to be outvoted by the Labour and Liberal Democrat MSPs, whose parties were the coalition government at that time, and who promised “front-loading” of participation as a better way forward. Now the roles were reversed, as the SNP Minister forcefully opposed the proposition, arguing the case of the development industry that any change in the appeal system would add costs, delays and uncertainty. SNP and Conservative MSPs combined to vote down calls from other parties to give a right of appeal to communities if a permission contradicts the development plan.

The lobbying for equal rights of appeal has been led by the campaigning group Planning Democracy - full disclosure, I was a member of their delegation that met with the Minister to press this case in 2018. They were supported by over 80 community and environmental groups. However, opposition to it was widespread, not only from development interests such as the SPF , but also from the RTPI, Heads of Planning, Scotland; Homes for Scotland; The Institute of Civil Engineers, Scotland; The Royal Incorporation of Architects in Scotland; the Royal Institution of Chartered Surveyors; Scotland’s Towns Partnership; Scottish Mediation Network and PAS (formerly Planning Aid Scotland)

In the Stage 3 debate, Green MSP Patrick Harvie suggested that equal rights of appeal would always be an issue promoted by parties in opposition, but opposed by civil servants and the governing party.

So what does it all mean?

In terms of Scottish politics, the clear winners were the Conservatives. In particular, thr spokesperson Graham Simpson MSP played his cards very astutely. They were able to get a Bill passed by the SNP that they could have crafted themselves. Over 79 Stage 3 Amendments, the SNP voted with them 72 times. Nevertheless, the Government, and particularly the Minister will also be pleased: in the end, a “guddle” was transposed into something along the lines of what they originally wanted and promised. The scale of cost cutting may be less than they had hoped for, but as with austerity more generally, that is mainly a problem for local authorities. Crucially the Government was able to resist measures which it saw as potentially making Scotland a less attractive place to invest than England. With anxiety about the potential economic impact of Brexit, and the need for Scottish voters in a future independence referendum to feel positive about their economic prospects in an independent Scotland, this was a high priority. The other opposition parties, heartened by their successes at Stages 1 and 2, got some scraps but were largely left disappointed.

Of the lobbyists, the clear winners were the Scottish Property Federation, the housebuilding companies, and the commercial interests backing short-term rentals. The RTPI and Heads of Planning Scotland will feel satisfied that they were listened to by the Government and the Conservatives when they raised concerns about new obligations on planning authorities. Potentially awkward issues about equalities were not mainstreamed. Creation of a statutory duty for planning authorities to appoint a Chief Planning Officer will be seen as a significant win. Given that the Scottish Government had resisted calls for a professional planner to be appointed to the “independent” review that kick started the whole process, the RTPI will feel it has regained some ground.

During the long period of post-1945 consensus, planning legislation was seen largely as a technical matter exciting little political division. That began to change under the Thatcher governments, as recorded, for example, by Andy Thornley in his 1991 book Urban Planning Under Thatcherism. However, in subsequent decades, and during the life of the Scottish Parliament, a new kind of consensus began to congeal, as part of the politics of New Labour and of the SNP. This was rooted in the wider ideology of neo-liberalism, depicting planning as a bureaucratic drain on taxpayers and a barrier to job-creating enterprise and growth. It was in this vein that the housebuilding companies lobbied for further change in Scottish planning less than a decade after the 2006 Act. It also explains why, when confronted by the need to formulate a new Scottish Planning Bill, ironically the SNP government and its advisors looked for inspiration not to Scandinavia (which has been frequently cited as a model for an independent Scotland), Germany or UN-Habitat, but to England, where over the past couple of decades the UK government has tinkered regularly with the planning system to rid it of the last vestiges of welfare statism. Thus the original Bill drew heavily on such English changes, most notably the abolition of regional scale plans, but also the introduction of a Community Infrastructure Levy, a souped up form of Simplified Planning Zones, and – a legacy of the Cameron administration dalliance with localism – Neighbourhood / Local Place Plans, along with an on-going harrying of planning authorities over their “performance”. In respect of the latter point, few now remember that the 1980s introduction of fees for planning applications was fiercely contested at the time, on the grounds that planning was a public service carried out for public benefit, but a commodity to be purchased by “customers”, and consequently assessed by how well it performs for those customers.

These parameters have been deepened and sharpened by a decade of austerity, making local authorities and the RTPI more sensitive to the costs and resourcing of the system than to its scope and purpose in the 21st century; equalities, the climate emergency, the structural weaknesses of depending on the big house building companies to supply most of our new housing, and the “delivery” problems posed by fragmented privatised or private-style infrastructure providers were, at best, secondary matters. Structures shape minds and practices.

The long saga of the Scottish Planning Bill reveals that this mindset is now being seriously challenged, and Scottish planning is becoming more contested and more politicised. Although the government was able to get its Bill passed through reaching an understanding with the main opposition party, it conceded ground on a number of contentious issues, as outlined above, even to the extent of creating blatant irrationalities within the legislation as I have highlighted. To its credit, by making explicit provision in legislation in respect of young people, gypsies and travellers and disabled persons, it also took a step towards acknowledging that inclusiveness should be a mainstream part of planning, rather than left to a few innovative planning authorities to indulge in; but stopped short of recognising the gender dimension of planning, for example. Interestingly, the Minister has frequently, and I believe sincerely, championed the case for giving children and young people the right to be consulted, but seemed to suffer a “wobble” after Stage 2. He produced a Stage 3 amendment (number 82) to drop that right, but then during the Stage 3 debate announced that he would withdraw his own amendment. A tweet from PAS expressing “disappointment” at his proposal may have swayed him, I don’t know. However, I do infer that the fact that he had put his name to Amendment 82 suggests that he had been advised or lobbied to downgrade the right he was planning to give to young people.

Most significant in my view is the re-run of the 2006 promises that “front-loading” involvement will restore public trust. It is a theme that united all those supporting the Bill, and is most manifest in the hopes placed in LPPs. A few points need to be made. Fifty years after the Skeffington Report brought the idea of public participation into UK planning. As I wrote with Sean Damer at the time“Two themes which emerge strongly from Skeffington are this need to educate the public, and secondly an optimistic assessment of the likely pay-off from the practice of participation.” We quoted paragraph 20 of the report which said that participation would lead to “greater understanding and co-operation”, and the then Minister who had said “I want to make sure that people can get to know what the planning authority is proposing to include in its plans before attitudes harden”: sounds very like “frontloading” doesn’t it? In counterpoint we quoted Herbert Gans, the esteemed American urban sociologist: “When people reject a planner’s idea, it is rarely because they are stupid or evil, but because they have different life-styles and goals”.

Back in those distant days, the focus of our critique was primarily aimed at planners. At the time they had considerable influence, notably in driving through comprehensive redevelopment. Now they are only “facilitators”, expected to “deliver” development as desired by the development industry. However, what has stayed remarkably constant, and resistant to half a century’s experience and evidence, is the lacuna between the contested nature of development and the belief that front-loading will make conflicts disappear without any other shift in who has the power to decide. A cynic might suggest that frontloading participation actually favours the developers. In the case of pre-application consultations it provides them with information, while also reaffirming their dominant role. In development plans, we know that the default position of most people is only to get involved once a development is imminent, so the more frontloading is prioritised, the more opposition can be contained / delegitimised. In contrast, developer interests are unlikely to let “early” participation opportunities to shape development plans pass them by.

It is also important to recognise ways in which developers, their consultants and local authority backers have mastered the art of posing leading questions in consultations. For example, the 2019 consultation development at Waverley Station in Edinburgh is introduced by “The Masterplan process seeks to set out a route map to develop the station and the adjacent areas to ensure it can accommodate this growth, and to do it in a way that is fitting for the prominent location it holds within the heart of a world heritage city.” In effect, any debate is pre-empted: who can object to “growth” that is “fitting”?

More than 18 months after the Bill was originally introduced, nobody quite knows how the seemingly most radical change – the introduction of LPPs – will work out. The legislation as passed went so far as to require a progress review after seven years, reflecting the uncertainty. Will they be predominantly produced in better off areas? Will they really influence what goes into a development plan? Will they carry any weight at appeal? Similar questions can be asked about the moves to consult with young people, gypsy travellers and the disabled. Meanwhile, off in the wings, there sits the Land Commission that is looking at ways in which the land value increase resulting from public action might be shared rather than appropriated by developers and landowners. Judging by the politics of the Planning Bill, this still looks a long shot, but those same politics show that new questions are being asked.

So now it is on to the Royal Assent and then into practice. The Amended 1997 Planning Act is no Brave New World, whatever others may claim. The fundamental problems that led to its amendment in 2006 then again in 2019 are likely to be magnified. Restoration of public trust will necessarily be elusive, the causes have not been fixed. A system that had its origins in the idea that market-led development does not deliver outcomes in the long-term public interest, now has that purpose reiterated, but without acknowledging the tension with the market. Planning will remain a convenient scapegoat: as the Scottish Property Federation observed, “The main issue facing the commercial real estate sector in recent years is a lack of availability of finance, particularly for development purposes.”

The challenges ahead are to build a narrative and understanding of the crucial role that a radically reformed planning system could play in responding to the climate emergency, and to the linked concerns with equity and inclusion. A critical scrutiny of how neo-liberal planning in Scotland and elsewhere comes up short needs to be complemented by practices and ideas for real alternatives.

Read 22072 times Last modified on Monday, 01 July 2019 16:30

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